In a perfect world, employers will first complete their employment checks and vetting process before the successful candidate is issued with an employment contract and before employment commences. However, there may be justifiable reasons why an employer needs to make an appointment on an urgent basis before the employment checks and vetting process has been completed. In the situation mentioned above, employers tend to issue a conditional contract of employment containing a clause that states that should the candidate not pass the employment checks or vetting process, the employment contract will automatically terminate.

Schedule 8 of the Labour Relations Act 66 of 1995 provides proper guidelines to employers about dismissals. An employer cannot simply terminate the employment of the employee. The employer must follow a fair process and allow employees to state their case, among other factors, for the dismissal to be considered fair. The issue is whether an automatic termination of a contract of employment for failure to fulfil a condition in that contract amounts to a dismissal and, further, whether it is lawful for these types of clauses to be included in employment contracts.

The issuing of conditional employment contracts was dealt with in the case of Nogcantsi v Mnquma Local Municipality & Others (2017) 38 ILJ 595 (LAC). In this case, Mr Nogcantsi was appointed at the local municipality on a conditional basis. There was a clause contained in the contract of employment stating that Mr Nogcantsi’s employment was conditionally subject to a vetting and screening process, and should it transpire that the outcome of such checks is negative, then his employment contract will terminate automatically. It indeed later transpired that the pre-employment checks were negative. Mr Nogcantsi was not truthful with his employer about his criminal record and previous work history. The municipality, on this basis, proceeded to terminate his employment contract. The Labour Appeal Court agreed with the ruling issued by the Labour Court and arbitrating Commissioner at the CCMA that no unfair dismissal had occurred. The automatic termination was not caused by any act or decision the employer had made through a disciplinary process. Mr Nogcantsi had agreed to the vetting and screening process and all the other terms in the employment contract. The negative result of the employment checks caused the employment relationship to end.

Many other scenarios would require the employer to first complete employment checks. For example, a candidate applies for the position as a driver and cannot produce a valid driver’s license to the employer, or a candidate applies for the position as a financial advisor but can’t produce the necessary qualifications. It is always best to ensure that proper employment checks are concluded before appointing employees in the workplace. This mitigates the employer’s risk in that the employer knows exactly who they have employed. Whilst there may be a fair and justifiable reason for issuing conditional employment contracts, it can become costly and time-consuming to litigate and argue the fairness of an employer’s actions upon the termination of employment.

Employers should always seek the correct advice before implementing such clauses in contracts of employment before appointing employees on a conditional basis. Ensuring that the necessary employment checks and vetting process have been completed before the employment relationship starts would provide ease of mind to all employers.

Article By: Tenielle Meth
Dispute Resolution Official – Pretoria