There always exists a fair chance that a job-seeker has left the employment of their former employer on bad terms.
Whatever the circumstances, the applicant is faced with the difficulty that volunteering such information could harm their prospects of getting a new job.
The job-seeker may get away by being scant on detail in their CV. Being evasive during the job interview is likely to be more problematic. But, how far does the duty to disclose go?
In some cases the outcome of a given situation is fairly straight forward. In the Commission for Conciliation, Mediation and Arbitration (CCMA) case of Poonen vs JHI, the prospective employee (applying for the position of accountant) had been dismissed by the previous employer and was facing criminal charges for fraud.
In this case, the prospective employee had not only failed to disclose the reason why he had left his previous employment, but had also stated in his CV that he had left his previous employer for the purposes of “growth and improved prospects”. He was appointed to the new job, but dismissed when the truth emerged. The commissioner had no hesitation finding that the dismissal had been justified. In the Labour Court matter of MEC for Education, Gauteng v Mgijima & others, the employer did not have it that easy.
Ms. Mgijima was employed by the Department of Arts and Culture (DAC).
She then applied for a post with the Gauteng Department of Education.
At the time of her pre-employment interview by the Gauteng department, she had been suspended by the DAC in relation to disciplinary charges that the department intended to bring against her. When asked during the interview whether she had “skeletons in the cupboard”, she denied that she had any.
Soon after the interview with the Gauteng department, the DAC gave Mgijima notice of the disciplinary charges against her. In the mean time, she was informed that she had been successful in her application for the Gauteng department post.
Before the commencement of her employment with the Gauteng department, she entered into a settlement agreement with the DAC in terms of which she resigned and the DAC withdrew the charges against her.
When the department came to learn about Mgijima’s termination of employment, they brought charges against her for her failure to disclose material information. The matter was dealt with as a “pre-dismissal arbitration”. The arbitrator held the view that Mgijima did not have duty to disclose the information about her suspension on the basis of the principle in South African law that “a person remains innocent until proven guilty”.
In the arbitrator’s view a further consideration favouring Mgijima was the agreement between her and the DAC that she would resign in exchange for a withdrawal of the charges. That, the arbitrator said, meant that Mgijima had a clean record and consequently had no duty to disclose anything. The department took the matter on review to the Labour Court. The court held that the arbitrator had been wrong when he relied on the presumption that “a person remains innocent until proven guilty”.
According to the court, Mgijima was required to reveal she was on suspension pending a substantial number of charges. This fact was of material significance to the department as her prospective employer. It also found that withdrawal of the charges, did not mean that the existence of the charges were of no material significance to her prospective employer.
The arbitrators’ award was set aside. The case underlines the importance of the relationship of trust that should exist in the employment context.