Skeletons in closet must be revealed
Prospective employees must disclose all relevant circumstances
A QUESTION that usually arises when prospective employees apply for available positions is exactly how far does the duty to disclose “skeletons in the closet” go — that is, does an employee have to disclose the reason why he left his previous employment and whether disciplinary action is pending if he is still employed?
The Labour Court recently dealt with this issue in the matter of the Gauteng Department of Education (GDE) and Mgijima.
Mgijima was employed by the national Department of Arts & Culture. However, on February 22 2007 she applied for the position of deputy director-general in the GDE. Mgijima attended an interview with the GDE on August 13 2007.
Unknown to the GDE at the time Mgijima had been suspended by the Department of Arts & Culture on July 3 2007 relating to disciplinary charges that the department had indicated it would bring against her. Mgijima did not disclose that she was on suspension and when she was specifically asked whether she had any skeletons in the closet she replied in the negative. Soon after the interview, on September 12 2007, the Department of Arts & Culture gave Mgijima formal notice of the disciplinary charges against her. Mgijima was successful in her application for the position at the GDE and signed an employment contract on November 5 2007, effective from December 1 2007. About then she entered into a settlement agreement with the Department of Arts & Culture in terms of which she resigned from the department and the department, in turn, withdrew all charges against her.
The GDE learnt of the circumstances of the termination of Mgijima’s employment with the Department of Arts & Culture some months after she began working at the GDE.
The GDE considered her lack of disclosure of her suspension and pending disciplinary charges at the time of her interview to be serious and claimed that had it been aware of the true facts it would in all likelihood not have appointed her to the position in the GDE.
Further, the GDE considered that Mgijima’s failure to make disclosure of what it considered to be material information constituted a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees, particularly at the senior level of deputy director-general. As a result, the GDE brought charges against Mgijima and a pre-dismissal arbitration was convened. The arbitrator found that Mgijima’s dismissal was unfair.
The GDE applied to the Labour Court to review this decision.
The Labour Court concluded that the position that Mgijima applied for with the GDE was a senior position and that it required “unimpeachable honesty and integrity on the part of its incumbent” and further that Mgijima’s failure to disclose material information in response to an express invitation to do so deprived the GDE of the opportunity to make an informed decision as to the effect, if any, of the suspension and pending charges on the contemplated employment relationship. The arbitration award was therefore reviewed and set aside.
This judgment highlights the responsibility of prospective employees to make full disclosure of any and all circumstances that may reasonably influence the prospective employment relationship.
It also points out the employer’s recourse should relevant information not be disclosed. The determination as to what information is relevant and needs to be disclosed will depend on the specific position applied for, the seniority of the position and whether disclosure was requested specifically.