By Talita Laubscher and Monique Jefferson

In Eskom Holdings Ltd v Fipaza and Others [2013] 4 BLLR 327 (LAC) the Labour Appeal Court considered whether it was fair for Eskom to have dismissed Ms Fipaza because she had failed to disclose that she was previously dismissed for misconduct.

Ms Fipaza commenced employment with Eskom in 1994. In July 2003, it was agreed that she would go on a sabbatical in order to further her post-graduate studies in the United Kingdom. Her sabbatical leave was to expire on 5 July 2006, but this was subsequently extended to 5 September 2006. Ms Fipaza did not, however, report for duty on 5 September 2006 and she was called to attend a disciplinary inquiry on 29 September 2006 on the charge of absence from duty without leave.

Ms Fipaza acknowledged receipt of the notice to attend the inquiry, but she failed to attend it. The inquiry thus proceeded in her absence and she was summarily dismissed. Her appeal against the outcome of the inquiry was unsuccessful, but in the outcome of appeal, she was informed, inter alia, that should a vacancy arise for which her skills were required, she could follow the normal recruitment processes.

Two years later, in April 2008, Ms Fipaza applied for a position at Eskom. She was interviewed and offered the position, which she accepted. She was due to commence employment on 1 June 2008, and consequently tendered the required notice of resignation to her then employer.

However, on 27 May 2008, Eskom advised Ms Fipaza that it intended to withdraw the offer of employment on the basis that she had failed to inform the interview panel that she was previously dismissed from Eskom for misconduct. Ms Fipaza was invited to make representations as to why the offer of employment should not be withdrawn, which she did.

In this regard, she explained, inter alia, that she had disclosed that she was previously employed by Eskom; her dismissal in 2006 was for absence without leave, and not for dishonesty that could have resulted in a breakdown in the trust relationship; and, in her appeal outcome, she was informed that she could apply for suitable vacancies using the normal recruitment processes, and this is what she did. She reported for work on 2 June 2008. At about 10 am she was asked to leave the premises. On 4 June, Eskom informed her that the offer of her employment was withdrawn.

Ms Fipaza then referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Eskom led the evidence of two witnesses, a recruitment practitioner and the line manager. The line manager testified that Ms Fipaza’s failure to disclose the reasons for the 2006 termination caused him not to have confidence and trust in her and this had rendered the continued employment relationship intolerable. Ms Fipaza testified that her curriculum vitae (CV) clearly indicated that she previously worked for Eskom; that she answered all questions during the interview fully and honestly; and that she had no duty to disclose in her CV why she previously left Eskom’s employ.

The commissioner held that Ms Fipaza’s dismissal was substantively fair. He said, inter alia, that she misrepresented the true facts and that this misrepresentation was wilful and material and that, in the circumstances, Eskom had a fair reason to terminate her employment. As regards procedural fairness, the commissioner took note of Eskom’s concession that it had failed to follow a fair process and it awarded Ms Fipaza three months’ remuneration in compensation.

Ms Fipaza took the award on review to the Labour Court. She argued that the award was reviewable, among others, on the basis that there was no evidence that she had misrepresented facts, namely –

• she had reflected in her CV that she was previously employed by Eskom;
• she had provided the interview panel with her clock number, which gave them access to her full employment history; and
• she was informed that she could in future apply for vacancies.

She also argued that there was no evidence that the trust relationship had broken down.

Eskom, on the other hand, argued that even though Ms Fipaza was not pertinently asked about the reason for the termination of her services in 2006, she had a duty to disclose the reasons, because Eskom required a certain level of integrity and trust from employees.

The Labour Court, per Lagrange AJ (as he then was) held that the commissioner did not give proper consideration to the principle that there is no general duty on a contracting party to tell the other all he or she knows about anything that may be material, nor to the fact that Ms Fipaza’s dismissal was not a matter that fell within her exclusive knowledge. Consequently, the commissioner failed to consider Eskom’s own ability to ascertain the reason for the 2006 termination. The review accordingly succeeded and the dismissal was held to be substantively unfair. The court remitted the matter to the CCMA to determine the appropriate remedy.

Eskom appealed and argued that the court a quo erred in finding that there was no contractual duty to disclose the reasons for the 2006 termination and that the commissioner applied the wrong test to determine Ms Fipaza’s obligation to disclose. In this regard it relied, among others, on the recruitment form Ms Fipaza signed when she applied for the post in 2008. In terms of this form she confirmed that ‘false or incomplete information may constitute grounds for dismissal and an investigation may be made of my background and used relative to my employment status’.

Considering all the facts of the matter, the Labour Apeal Court (LAC), per Ndlovu JA (Zondi and Molemela AJJA concurring) held that the contemplated grounds of dismissal as set out in the recruitment form pertained to false or inaccurate information that Fipaza would have wilfully, through a positive act on her part, provided to the interview panel. There was no such material non-disclosure.

There was, furthermore, no legal or contractual duty on Ms Fipaza to have disclosed the circumstances surrounding the 2006 termination. In any event, Eskom had full knowledge of the reasons and circumstances of the 2006 termination, and it was therefore ‘unreasonable, ludicrous and disingenuous’ to claim that Eskom was not aware that she was previously dismissed for misconduct. Therefore, the fact that the interview panel, ‘through … ignorance, incompetence or negligence’ failed to question Fipaza concerning the reasons for the 2006 termination, did not entitle it to a defense that it was unaware of these facts.

In the circumstances, the LAC confirmed that Ms Fipaza’s dismissal was substantively unfair and the appeal was dismissed.

No order as to costs was granted.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.

These articles were first published in De Rebus in 2013 (Aug) DR 58.