Skele­tons in closet must be re­vealed

Prospec­tive em­ploy­ees must dis­close all rel­e­vant cir­cum­stances

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - LI­ZLE LOUW & ITUME­LENG SOLE

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.

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