Most Read Contributor in South Africa, September 2016
October 05 2011 When prospective employees apply for available
positions, exactly how far does the duty to disclose 'skeletons
in the closet' go? Must prospective employees disclose why they
left their previous employment and whether disciplinary action is
pending if they are still employed? The Labour Court recently dealt
with this issue.
Ms Mgijima was employed by the National Department of Arts and
Culture (DAC) when on February 22 2007 she applied for the position
of deputy director general in the Gauteng Department of Education
(GDE). Mgijima attended an interview with the GDE on August 13
2007. Unbeknown to the GDE at the time, the DAC had suspended
Mgijima on July 3 2007 in relation to disciplinary charges that it
had indicated it would bring against her. In her interview, Mgijima
did not disclose that she was suspended, and when she was
specifically asked whether she had any 'skeletons in the
closet', she replied in the negative. On September 12 2007 the
DAC gave Mgijima formal notice of the disciplinary charges against
her. In the meantime, Mgijima succeeded in her application for the
position at the GDE and signed a contract of employment on November
5 2007, effective from December 1 2007. Around that time, Mgijima
entered into a settlement agreement with the DAC, in terms of which
she resigned from the DAC and the DAC in turn withdrew all charges
The GDE came to learn of the circumstances of the termination of
Mgijima's employment with the DAC some months after she
commenced working for it. The GDE considered her lack of disclosure
– of both her suspension and pending disciplinary charges
– at the time of her interview to be serious, and claimed
that had it known the truth, it would in all likelihood not have
appointed her. Further, the GDE considered that Mgijima's
failure to disclose 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
Consequently, the GDE brought charges against Mgijima and a
pre-dismissal arbitration was convened. The arbitrator found that
Mgijima should not be dismissed. The GDE applied to the Labour
Court to review this decision.
The court concluded that the position which Mgijima had applied
for was a senior one and, as such, it required "unimpeachable
honesty and integrity on the part of its incumbent". Further,
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 disclose fully any circumstances that may reasonably
influence the prospective employment relationship. It also
highlights the employer's recourse should any 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 specifically requested.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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