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The duty of a job applicant to disclose information


Can an applicant for employment who failed to disclose certain information, or provided false information, to a prospective employer during the selection process be dismissed 

By: P.A.K. le Roux

This contribution deals with one particular scenario in this regard - when is a job applicant under a duty to disclose information to a prospective employer in the situation where the employer has not posed a question or questions aimed at eliciting the information? The leading cases in this regard are those of the Labour Court and the Labour Appeal Court in Fipaza v Eskom Holdings Ltd and others (2010) 31 ILJ 2903 (LC) and Fipaza v Eskom Holdings Ltd and others (2013) 34 ILJ 549 (LAC). Ms Fipaza had been dismissed by Eskom for failing to report for duty after being granted leave to study in the U.K.

Some 18 months later she applied for a job with Eskom and was appointed. However, shortly after she commenced employment she was dismissed. The reason for the dismissal was that she had failed to inform Eskom during the selection process that she had previously been dismissed by it. She challenged the fairness of her dismissal. The CCMA commissioner found that her dismissal had been substantively fair but awarded her compensation based on a finding that the dismissal had been procedurally unfair.

On review the Labour Court overturned this decision and found that the dismissal had been substantively unfair. The Court found that Fipaza had not been under a legal obligation to disclose her dismissal. In coming to this conclusion it relied on the following excerpt from the decision of the Supreme Court of Appeal in ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA)

‘The policy considerations appertaining to the unlawfulness of a failure to speak in a contractual context – a non-disclosure – have been synthesised into a general test for liability. The test takes account of the fact that it is not the norm that one contracting party need tell the other all he knows about anything that may be material (Speight v Glass and Another 1961 (1) SA 778 (D) at 781H-783B). That accords with the general rule that where conduct takes the form of an omission, such conduct is prima facie lawful (BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) at 46G-H). A party is expected to speak when the information he has to impart falls within his exclusive knowledge (so that in a practical business sense the other party has him as his only source) and the information, moreover, is such that the right to have it communicated to him ‘would be mutually recognised by honest men in the circumstances’ (Pretorius and Another v Natal South Sea Investment Trust Ltd (under Judicial Management) 1965 3 SA 410 (W) at 418E-F).”

The Court also found that the fact that she had been dismissed was not within her exclusive knowledge. Although the interview panel may not have known about her dismissal they had been in a position to ascertain the circumstances in which Fipaza’s employment had been terminated.This decision was upheld by the LAC which also referred with approval to the ABSA Bank decision.

The same principles were applied in the recent decision in Galesitoe v Commission for Conciliation, Mediation and Arbitration and others (JR1401/14 31/1/2017). The employee in this case, a Mr Galesitoe, had been employed by the Public Investment Corporation (PIC). He was then employed by Deloittes Consulting (Deloittes) but was dismissed on the ground that he had failed to disclose to Deloittes, during the selection process, that he was involved in litigation against the PIC. The relevance of this failure, according to Deloittes, was the fact that he had been employed so that he could assist Deloittes to gain business in the public sector, including the PIC. His previous employment with the PIC was seen to be an advantage in this regard. The fact that he was litigating against the PIC would obviate this advantage.

A CCMA commissioner found that the dismissal was fair. The following points are relevant in this regard –

  • She accepted that Galesitoe had known that his previous employment with the PIC was regarded as an asset and that he ought to have disclosed the litigation to Deloittes.
  • She distinguish the Eskom decision from the case before her on the basis that Eskom had knowledge of the fact that Fipaza had been dismissed. She rejected the argument that Deloittes could have obtained knowledge of the litigation by doing pre-employment checks. In any event, Galesitoe had been litigating against the PIC under a name different to that he utilised in his employment application.
  • The fact that one member of the selection panel, a Mr Tabane, had knowledge of the litigation was irrelevant because he did not work for Deloittes Consulting but another company associated with Deloittes Consulting.

Galesitoe then took the award on review. At the commencement of the judgment the Labour Court stated that the crux of the review application was whether the commissioner had applied the test formulated in the Fipaza decisions correctly. It came to the conclusion that the commissioner had done so and upheld the findings of the commissioner. The application to review was dismissed. The Court stated that –

‘[11] … it was not unreasonable to infer that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose having regard to the principle enunciated in Absa Bank Ltd v Fouche which the LAC and the LC followed in the Fipaza case.’

During the course of the decision the Court also made the following points –

  • It rejected the argument that, as a matter of public policy, Galesitoe was not obliged to disclose his litigation because section 5 of the LRA prohibits the prejudicing of an applicant for employment on account of him exercising any right conferred by the LRA, including litigating against his former employer. In this case Galesitoe was litigating to recover monies he alleged were owed to him because he had been a member of various boards of companies owned by the PIC. This was not litigation relating to the exercise of any rights that he may have had as an employee in terms of the LRA.
  • It also rejected the argument that an employer has a duty to investigate what litigation, if any, a job applicant may be involved in. It would be perverse if a prospective employee could, in effect say –
    ‘ …I am entitled to assume that you have done diligent research into my history of litigation with my previous employers, to the extent it may be relevant to my engagement, and consequently I do not need to mention the fact that I have a significant claim against my last employer with whom you seem to be expecting I will assist you to engage with in a fruitful business relationship if I am employed.’