Employment law update – Job applicant’s duty to disclose

September 1st, 2017
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Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

In Galesitoe v Commission for Conciliation, Mediation and Arbitration and Others [2017] 7 BLLR 690 (LC), the employee was dismissed for failing to disclose at the earliest opportunity that he was involved in litigation with his former employer. Furthermore, he was charged with misrepresenting his ability to attend to all his employment obligations. In this regard, the employer alleged that the employee had been employed with the specific mandate to win over business from his previous employer due to his prior work experience. The fact that he was embroiled in litigation with his former employer materially impacted on his ability to win business from his previous employer and other public sector clients. The employer argued that during the interview the employee was made aware that his previous employer was a target and that his appointment would be specifically related to winning business from his previous employer.

The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and argued that he was not under an obligation to disclose the pending litigation with his former employer. Moreover, his new employer should have conducted pre-employment checks to ascertain this information and the litigation was in any event in the public domain. The arbitrator found that it would not have been possible for the employer to find out this information as the employee was litigating under a different name. The arbitrator concluded that in omitting to disclose the litigation the employee’s conduct had had a negative impact on the employer and the employer could no longer trust the employee. Thus, dismissal was appropriate in the circumstances.

The employee took the matter on review to the Labour Court and argued that the commissioner did not reach a decision that a reasonable decision maker could reach for the following reasons:

  • The employee was not required to disclose his litigation as s 5(1)(c) of the Labour Relations Act 66 of 1995 (LRA) prohibits an employee from being prejudiced for exercising any right under the LRA or engaging in proceedings under the LRA.
  • The arbitrator failed to consider that one of the individuals on the interview panel was aware of the litigation and the ligation was in any event in the public domain.
  • The employee alleged that the employer should have ascertained this information by doing appropriate background checks, which the employer conceded it did not do.
  • The arbitrator misconstrued the evidence that the employee’s primary focus was to win business from his previous employer, which the employee argued was not the case.

La Grange J found that the employee could not rely on the provisions of the LRA, which preclude an employee from being prejudiced for engaging in proceedings under the LRA. This is because the litigation was not related to his rights under the LRA but instead was a civil matter for amounts allegedly due to him as a director on the board. La Grange J further did not agree that the employee was relieved of his duty to disclose the information because one of the individuals on the interview panel had knowledge of the litigation. This was particularly because the individual had been under the impression that the litigation had been resolved. La Grange J also did not agree that the employer should have determined this information by doing a pre-employment check, particularly in circumstances where the litigation had been instituted under a different name. La Grange J remarked that even if the litigation had been under the same name, the employer would not be under a duty to research what litigation a job applicant is engaged in, although this may be different if the information was contained in the employee’s personnel records at the employer. Thus, an employee cannot assume that such a search has been done by the employer.

Finally, La Grange J acknowledged that another arbitrator might have interpreted the evidence differently and reached a different conclusion. However, it was not unreasonable for the arbitrator to determine that the employee’s relationship with his former employer was a material consideration for the new employer and to conclude that the dismissal was fair in the circumstances. The review application was dismissed.

Alleged discrimination on the basis of an arbitrary ground

In Ndudula and Others v Metrorail – Prasa (Western Cape) [2017] 7 BLLR 706 (LC), the applicants were employed as section managers. The employer then appointed two more employees as section managers on a higher salary than the applicants.

The applicants lodged three grievances in this regard and referred an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration for conciliation. Thereafter, the unfair discrimination claim was referred to the Labour Court (LC) and the applicants sought an order that they be remunerated on the same terms and conditions as the newly appointed section managers.

The employer admitted that it had paid the newly appointed section managers at a higher salary but denied that in doing so it unfairly discriminated against the applicants as alleged. At the pre-trial conference it became common cause that the salaries of the two section managers had been calculated in error and their salaries were reduced approximately 20 months later. The employees, however, did not refund the employer in respect of the higher salaries that had been paid in error. The applicants then limited their relief to the payment of a lump sum as compensation.

The applicants based their claim on s 6(1) of the Employment Equity Act 55 of 1998 and alleged that they were discriminated against on an arbitrary ground. The applicants alleged that it was not necessary to specify a specific ground as the conduct of the employer inherently constituted arbitrariness. In this regard, they alleged that the wage differentiation was arbitrary and simply because it was arbitrary it constituted unfair discrimination. The employer argued that ‘arbitrary’ in itself is not a ground and the applicants still needed to specify the ground that was allegedly arbitrary.

The LC per Coetzee AJ considered whether there were three distinct grounds of unfair discrimination, namely –

  • a listed ground;
  • an analogous ground; and
  • an arbitrary ground or whether there were simply two grounds.

Coetzee AJ held that there are only two grounds of unfair discrimination, namely, a listed ground and an arbitrary ground, which are the grounds analogous to the listed grounds. Coetzee AJ held that it was not the intention of the legislature to add a third ground of unfair discrimination by including ‘any arbitrary ground.’ He held that an arbitrary ground can only be described as any differentiating criterion which forms the basis of a differentiation which is not rationally linked to a legitimate purpose.

Coetzee AJ remarked further that the crux for the test for unfair discrimination is the impairment of human dignity, not the classification of the ground as listed or unlisted.  Thus, the differentiation must affect human dignity or must have a similar serious consequence. The effect of the inclusion of ‘arbitrary ground’ is that discrimination on any arbitrary ground affecting human dignity constitutes unfair discrimination provided that the complainant defines the arbitrary ground and discharges the burden of proof.

In this case, the applicants did not plead any ground on which they were allegedly discriminated against. Even if they had alleged that ‘error’ was the arbitrary ground, Coetzee AJ was of the view that it would be difficult for an error that was subsequently corrected to constitute such a ground. The application was dismissed.

This article was first published in De Rebus in 2017 (Sep) DR 47.

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