Mistakes in employment selection can be very costly, with serious implications for both the individual and for the organisation. From an employer’s perspective it is important to understand that, once an applicant has been appointed, a process of dismissal in terms of labour law legislation is very lengthy and burdensome.
The importance of references in the employment context is obvious, although certain aspects thereof are not clearly defined in South African law. The current situation is that considerable uncertainty exists in practice and a number of aspects require clarity.
One of these aspects is that it is currently not certain whether a former employer has an obligation to provide an employment reference.
The typical problem that arises from employment references is that the information provided by a former employer is either inaccurate or constitutes an unsubstantiated subjective opinion about the employee, which should be irrelevant. Such an opinion may nevertheless create the risk of a negative inference being made by the prospective employer and lead to the eventual non-employment of the applicant based on the unfavourable reference.
Apart from the risk of not being employed, the employee’s right to a good name (fama) may also be infringed by the unfavourable reference (whether it be true or false) and the employee, depending on their status in a particular employment sector, might suffer considerable reputational damage.
A job applicant, therefore, risks incurring two types of damages by a negative employment reference, namely –
prospective patrimonial loss caused by their non-employment; and
defamation.
The fact that a prospective employee suffers damages does not necessarily mean that they will be able to claim such damages. It will obviously depend on whether the other delictual elements, besides damages, can be proven.
With regard to the element of wrongfulness, the question of whether a former employer is obliged to provide a reference, whether they owe a legal duty towards a former employee and possibly also towards a prospective employer, has to be considered. To this extent the nature of the relationship between the parties plays an important role.
The content of the reference, whether it is true or false, the intention of the former employer (bona fide or mala fide), as well as the relevance of the information will be of importance in establishing an element of fault. While negligence will be sufficient to establish a fault element for the aquilian action, intention (animus iniuriandi) is required in cases of defamation.
The appropriate action available to an aggrieved employee will, however, always depend on the circumstances of each case. The different delictual actions in South African law available are discussed below in order to determine their suitability in variable circumstances.
In a recent case of Cape Town's Employee Dismissal Publication Policy Sparks Controversy
The City of Cape Town's municipal manager has implemented a quarterly publication policy listing dismissed employees and their offenses within internal communications. The latest report includes 65 staff members dismissed in Q4 2024. This policy has ignited debate over the balance between organizational transparency and employee privacy rights.
The municipality argues that this approach promotes openness, accountability, and deters misconduct by showcasing the consequences of violating workplace policies. According to city officials, the intent is to create a culture of integrity and responsibility by educating employees on the repercussions of misconduct.
The South African Municipal Workers' Union (Samwu) has filed a complaint with the Human Rights Commission, arguing that naming and shaming dismissed employees is both humiliating and a violation of fundamental worker rights. Samwu maintains that publicizing dismissals, even internally, damages reputations irreversibly.
The city's internal communications policy explicitly prohibits sharing dismissal information outside the organization to comply with the Protection of Personal Information Act (POPIA). Employees are warned that disclosing such information externally constitutes a violation of POPIA and municipal policies.
This is the third consecutive quarter in which the city has published such a list, signifying a pattern of enforcement despite growing opposition from labor unions.
Legal Considerations Under South African Law need to be taken in to account
1. Constitutional Rights
The Constitution of South Africa guarantees the right to privacy under Section 14, protecting individuals from unlawful exposure of personal information. However, Section 36 allows limitations on rights if such limitations are justifiable in a democratic society. The city's policy would need to demonstrate that its benefits outweigh the potential harm to dismissed employees.
2. POPI Act Considerations
The Protection of Personal Information Act (POPIA) governs how personal data should be handled. While internal sharing of employee misconduct details may be justified under:
Section 11(1)(d): Legitimate interests pursued by the employer
Section 11(1)(f): Legitimate interests of the data subject
There are key compliance risks:
Data minimization principle: Publishing full names may exceed the necessary disclosure of information.
Strict internal confidentiality: Information must not be shared externally.
3. Labour Relations Act
The Labour Relations Act (LRA) mandates that disciplinary action must be both substantively and procedurally fair (Section 188). Employers may argue that publishing dismissal information:
Serves as a preventive measure for workplace misconduct.
Forms part of workplace discipline strategies.
Acts as an educational tool to guide employee conduct.
4. Employment Equity Act
Under Section 60 of the Employment Equity Act, employers are required to take proactive steps to prevent workplace misconduct, including sexual harassment. Employers might justify publication of misconduct (if anonymized) to:
Demonstrate a zero-tolerance policy.
Act as a preventive measure.
Showcase clear consequences for such behavior.
While naming and shaming dismissed employees may serve as a deterrent, it must be carefully implemented within South African legal frameworks. Employers should consider alternative disciplinary approaches that protect privacy while reinforcing workplace integrity and compliance. It is, however, of equal importance that the employee’s rights are not ignored and that a less intrusive way of reaching the same outcome is always considered. The challenge seems to be developing clear guidelines for providing employment references, that are truthful, relevant and reliable (without exposure to possible liability), while simultaneously considering and protecting the different interests of the respective parties.
Practical guidelines
As explained above, it is not recommended that employers simply refuse to provide employment references to avoid the risk of liability. Employers should instead ensure that they provide meaningful, truthful and relevant references, which will make a positive contribution to establishing a well-functioning and reliable reference system in the South African employment sector.
Suggested that an employer consider the following practical guidelines when preparing such references:
Since there is no general duty to provide an employment reference other than a certificate of service, an employer should confirm whether such an obligation is not created by legislation or regulations applicable in the sector or profession of operation.
Implement a workplace policy that specifies who is entitled to provide a reference, how references should be dealt with and which information should rather be avoided when providing a reference. The purpose of this policy must be to ensure consistency in the provision of references and to avoid references, which are falsely positive or negative about an employee.
Ensure that the prospective employer, who is requiring the reference, has obtained the necessary consent to do so from the job applicant.
To ensure compliance with Protection of Personal Information Act 4 of 2013 (POPI), include a provision in the employment contract at the commencement of an employee’s service, in terms of which they agree to specific information being published in an employment reference at termination of their service or otherwise on request.
In order to further comply with POPI, make sure that the reference is treated as private and confidential and that it is provided to the person who has consent to receive it, whether in writing or verbally.
Verify the information contained in the reference and make sure that it is a fair and accurate reflection of the employee’s skills and abilities. The reference should be brief and only contain information relevant to the inquiry. Avoid subjective personal views. Information or allegations, which cannot be substantiated, must not be included. Ensure that the reference is objective and minimises the risk of misinterpretation of statements by making use of plain language and terminology that is common in the specific industry.
Ensure that the contents of the reference are factual in nature and do not constitute an overly positive or negative opinion about the employee’s abilities.
Treat all employees equally and consistently and avoid comments that may be construed as discriminatory.
If necessary, provide a qualification to create a context in which the reference must be read and understood, for example, limited time that the referee has known the employee.
Consider including a disclaimer, which stipulates that the employee has consented to the provision of the reference and that both the employee and prospective employer accept exclusion of liability, even though the effectiveness of such a clause is unsure.
The same care should be taken in providing telephonic or verbal references as the care taken when providing a written reference.
