It’s not surprising that job applicants will typically be reluctant to reveal acrimonious termination of employment with a previous employer. This is as common as the all too common patterns of CV embellishment seen daily. So how much is a job applicant required to reveal about how they left their previous employer, in a subsequent job application process? Also, is the non-disclosure of an adverse relationship with a prior employer amount to misconduct, and if so, dismissible misconduct.
The extent to which a job applicant is obligated to disclose facts during the recruitment process were prescribed by the Labour Court in Galesitoe v CCMA & others  7 BLLR 690 (LC), where the court had the following to say on the subject – “Accordingly, it is not unreasonable to ensure that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose having regard to the principle enunciated in ABSA v Fouche which the LAC and the LC followed in the Fipaza case”.
In a more recent judgment in Intercape Ferreira Mainliner (Pty) Ltd v Rory Mark McWade & others – (Labour Court: Case number JR158/170 delivered on 13 September 2019, the court pronounced on this issue by holding that -“outside the category of deliberate false representations of fact, a prospective employee may nonetheless be required to disclose information not speciﬁcally requested, if that information is material to the decision to employ: or where (as in the present instance) 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 question of whether, or not, the nature of a job applicant’s relationship with a former employer must be disclosed to a prospective new employer, was once more addressed in a much more recent Labour Court judgment (8 May 2020) in Maye R. Makhafola v National Bargaining Council for the Road Freight and Logistics Industry & 2 others (Case number J2673/16).
The employee had resigned from her previous employer after she had been found not guilty at a disciplinary hearing. She was especially aggrieved by the disciplinary hearing process, and subsequently resigned and lodged a constructive dismissal claim against the previous employer. Prior to being issued the disciplinary notice, she had received a job offer from another employer. What appears to have been somewhat relevant in this case is the fact that her previous employer was a client of her prospective new employer.
The employee did not disclose her disciplinary hearing or pending constructive dismissal case against her previous employer, with her new employer, until she had commenced employment with her new employer.
The applicant did however inform her new employer of the constructive dismissal claim pending against her old employer, and the disciplinary hearing at which she was found not guilty.
Her new employer “did not respond favourably to this and instituted disciplinary action against the Applicant which led to her dismissal”. The new employer charged the applicant with (1) “Failure to disclose information relevant to your employment with Imperial in that you have known of the adverse relationship that you have with Aveng Trident Steel at the time of our appointment with Imperial and that you failed to disclose your adverse relationship with Aveng Trident Steel, the latter which prevented you to fulfil your contractual employment obligation as a Project Manager pertaining to the Aveng Trident Steel contract” and (2) “adverse relationship with Aveng Trident Steel in that you have an adverse relationship with Aveng Trident Steel, the latter which prevents you to fulfil your employment obligations as a Project Manager pertaining to the Aveng Trident Steel contract.” She was found guilty and dismissed. The applicant challenged the fairness of her dismissal at the CCMA, which held that the dismissal was “for a valid and fair reason. The failure by the Applicant to disclose an adverse relationship that she had with the Client (Trident Steel)  damaged the trust component that is corollary to an employment relationship”.The Labour Court held that “it cannot in my view be said that the so-called non-disclosure of the adverse relationship amounted to any form of misrepresentation on the Applicant’s part, nor constituted misconduct which became a dismissible offence”. In yet another related judgment, the Labour Court in Galesitoe v CCMA and Others  7 BLLR 690 (LC) held “Accordingly it is not unreasonable to ensure that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. This would give rise to an obligation to disclose…”. The Labour Court continued that the failure to disclose must pertain to material information, “at least in the sense that the prospective employer would have conducted its own enquiry into the relevant facts and determined eligibility or sustainability for employment as a consequence”.