In another twist involving the public protector’s office‚ the Minister of Co-operative Governance an.
OFTEN an employee, who has been charged with misconduct and was found guilty and subsequently dismissed, will wittingly or unwittingly fail to inform their new employer that their services were terminated due to misconduct.
This is also often the case when an employee resigns in the face of a disciplinary hearing for alleged misconduct to avoid the possible adverse outcome of a disciplinary hearing that might or might not taint their new employment relationship.
The question that arises is whether an employee who was dismissed for misconduct must disclose this to their new employer. Also, if the employee fails to do so and the new employer finds out, whether the employer is entitled to discipline them.
The courts have taken the view that an employer is entitled to discipline and dismiss an employee who has misrepresented material information about their past employment and or failed to disclose material facts relating to past employment before appointment. Especially if the employee is employed at a senior level and occupies a high-profile position when the nature of the work requires disclosure.
In Auret vs Eskom Pension and Provident Fund (1996) 7BLLR 838 (IC), the Industrial court found that an employer was entitled to terminate an employee's employment if there are material misrepresentations regarding the employee's past employment.
The court further found that failure to disclose criminal activities in previous employment constitutes a dismissible offence.
In Ndlovu vs Transnet Ltd t/a Portnet (1997) 18 ILJ 1031 (LC) an employee was dismissed by her previous employer. A criminal charge of fraud was laid against her by her previous employer and she was subsequently arrested.
Her current employer then charged her with intentional non-disclosure because she failed to disclose during her interview that she had been dismissed due to dishonesty by her previous employer.
In the case of Ndlovu the labour court held that it was not inappropriate for the employee's current employer to ask about her previous conduct because the employee was employed at a senior level and enjoyed a high-profile position.
In Oracle Corporation SA (Pty) Ltd v CCMA and Others (2005) 10 BLLR 982 (LC), the employee omitted from his CV the fact that he was employed at a company that was taken over as a going concern by his current employer.
The court found that not disclosing material facts regarding past employment to your new employer is a dismissible offence.
It is always in the best interest of an employee, who is commencing employment with a new employer, to disclose the reasons for the termination of their services by their previous employer. This is to avoid disciplinary action by their current employer for their failure to disclose material facts about their past employer, either through misrepresentation or by omission.
This duty to disclose is even more obligatory in instances where an employer has specifically asked an employee for the reasons for leaving their previous employment.
- Lavery Modise is deputy chairperson and Jean Ewang an associate at Eversheds