The need for employers to be able to trust their employees is crucial. For example, employers need to know that their employees and prospective employees are honest as regards the job qualifications they put forward, the work that they do, and the clients that they serve. The employer needs to be sure that its employees do not misuse the knowledge they have of the workings of their organisation for their own personal gain.
In the competitive job market of South Africa, it's not uncommon for job seekers to resort to deceptive tactics to enhance their prospects of securing employment. Such tactics may involve:
Claiming qualifications that do not exist
Falsification of CVs and academic certificates
Provision of false reference letters
Exaggeration of skills and experience
Lying about reasons for termination of previous jobs
Denying that the employee is pregnant
Lying about the employee’s age
Provision of incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references
Withholding of information such as criminal convictions and disciplinary action
The key questions are:
What information does the law require the job applicant to provide?” and
“What legal recourse is there for the employer who subsequently finds that it has employed someone who deceived it prior to employment?”
It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant. While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstances. For example, section 6 of the Employment Equity Act (EEA) prohibits discrimination against job applicants on a number of arbitrary grounds including race, gender, pregnancy, age, and numerous others.
Logically, therefore, it would normally be unacceptable to fire an employee who had withheld information related to these prohibited arbitrary criteria. For example, it would, in most cases, be wrong to fire an employee for having failed to inform the employer, during the job application stage, that she was pregnant. Although the employee may have proved to have been dishonest about this at her interview, job applicants are not required to divulge such information.
In Grobler./ Anglo Platinum Frank Shaft [2008] 2 BALR 147 (CCMA), the applicant applied for employment, his application was successful, and he was appointed. The applicant was previously employed by Impala Platinum Rustenburg. Whilst in that employment, the applicant was charged with gross negligence in the performance of his duties, resulting in his dismissal from Impala Platinum. The applicant, after his dismissal, started and managed his own business for approximately 12 months.
The applicant later approached an employee of Anglo Platinum regarding the possibilities of any employment opportunities there. The employee who was approached asked the applicant for a copy of his curriculum vitae in order to give it to the mine overseer. The applicant did mention to this employee that he spoke to, that he was previously dismissed from Impala Platinum. The employee apparently passed this information to the mine overseer. Following an interview, the applicant was informed that his interview and subsequent application for employment were successful.
After signing an offer of employment for the position of shift supervisor, the applicant continued to attend the induction course, and after successfully completing that course he returned to his specific shaft. During this time and whilst attending to administration requirements specifically in relation to the applicant’s employment, it was discovered that the applicant was previously dismissed from Impala Platinum. The applicant was informed that his employment would not be processed and that he must report to the human resources Department. The applicant was informed that his appointment was withdrawn due to the fact that he failed to disclose important information in respect of his disciplinary record with the Impala mine.
The applicant then referred a dispute of unfair dismissal to the CCMA. A witness for the respondent testified that at the interview, he did ask the applicant the reason why he had left his previous employment, and the applicant answered that he was looking for better opportunities. Under cross-examination, witnesses for the respondent confirmed that the applicant had the opportunity to disclose the fact that he was dismissed from Impala, but failed to do so. For various reasons, it was held that there were procedural defects regarding the procedure followed by the employer prior to dismissing the applicant. In other words, the arbitrator ruled that the dismissal was procedurally unfair but substantively fair. The substantive reason for the dismissal was a fair reason – namely the reason for the dismissal was because the applicant had failed to disclose vitally important information regarding the termination of his employment with his previous employer. Despite the fact that the arbitrator found that the dismissal was procedurally unfair, he did not award any compensation to the applicant for procedural unfairness.
This was because of the procedural defects brought about by the employer, when seen against the fact that “the applicant himself acted unjustly and incorrectly by failing to disclose important and relevant information that would, in all probability, have impacted negatively on the decision of the respondent to appoint the applicant,” is sufficient to render any procedural defect to be not unfair per se. In other words, said the arbitrator, against this background the applicant is the architect of his own fate and therefore is not entitled to any compensation.
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