Employers need to know that their employees and prospective employees are honest regarding their job qualifications, the work that they do and the clients that they serve.
In the case of Intercape Ferreira Mainliner (Pty) Ltd v McWade and others  2 BLLR 199 (LC), the Labour Court had to decide whether a duty rests on an employee to disclose to his / her future employer information which may affect the employer’s decision to employ him/her, and whether the failure to disclose such information constitutes misconduct.
The employee, McWade, was employed by Intercape as a general manager in May 2015. At the time of his employment, it was anticipated that he would be groomed for and, in due course, be appointed as Intercape’s chief executive officer.
However, in June 2016, McWade was subsequently dismissed for, among other reasons, failing to disclose the circumstances surrounding his departure from his previous employer. McWade had been employed by the Cargo Carrier Group (“CCG”) in Zimbabwe. CCG levelled a number of allegations of bribery, corruption and the use of company assets without permission against McWade. He was suspended, and subsequent negotiations resulted in a settlement agreement being reached between him and CCG.
During his interview for employment with Intercape, McWade was asked, on more than one occasion, about his departure from his previous employer. He did not mention any of the circumstances surrounding his departure. He gave reasons such as “difference of opinion” and “new owners, Zim Economy”. When asked if there was anything to be concerned about regarding his departure from his previous employer, he once again did not mention the circumstances surrounding his departure.
McWade was subsequently dismissed and referred an unfair dismissal matter to the CCMA. The Commissioner at the CCMA found McWade’s dismissal to be unfair because Intercape failed to establish that it had sought specific information from McWade regarding the circumstances surrounding his departure from his previous employer and that McWade made no false representations.
The Labour Court, however, upheld the review application stating that an employee may be required to disclose information not specifically requested, if that information is material to the decision to employ, or where a question is asked, that a less than honest and complete answer might form the basis for a dismissal when the truth is ultimately discovered.
The abovementioned case highlights the fact that where there is material information that may impact upon an employer’s decision to appoint an employee, this must be disclosed by the employee during the interview process. Failure to disclose in such circumstances will constitute misconduct which may lead to dismissal.
Employers should, therefore, expressly mention this obligation to applicants for employment. During the interview process, they should ask applicants why they left from the previous company they worked for and if any disciplinary action was taken against them. Also, ask about criminal records and other factors that are inherent to the position. Matters become more complicated when the employer fails to ask these questions and later attempts to dismiss employees for misrepresentation or operational reasons.
Employers should also check all information that job applicants give them and put systems in place for preventing employees from misusing their knowledge of the organisation for personal gain. If employers suspect that employees have misrepresented themselves, employers should hold disciplinary hearings that are procedurally and substantively fair before acting against them.
It is advisable that employers, before holding such hearings, consult with their labour consultants as to whether the deceptive behaviour in each individual case merits discipline and dismissal.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth