Misconduct that renders an employment relationship intolerable is regarded as sufficient to justify dismissal.

Misconduct that renders an employment relationship intolerable is regarded as sufficient to justify dismissal.

However, the question arises as to whether misconduct committed before the commencement of employment is dismissible.

For example, is an employer entitled to dismiss an employee if the employee is found to have fraudulently misrepresented his qualifications on his curriculum vitae (CV)? Or, is an employer entitled to dismiss an employee if the employee has failed to disclose the fact that he was found guilty of a serious crime?

In the matter of TAWU obo Louw vs Volkswagen (Pty) Ltd [2003] 4 BALR 493 (CCMA), the employee was dismissed after he claimed at his pre-employment interview that he earned a salary much higher than he was actually earning at his previous employer. The employee contended at arbitration that the charge of misrepresentation was unwarranted as the misrepresentation had occurred before the commencement of his employment. However, the Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner held that an employer is entitled to dismiss an employee who is guilty of misrepresentation at a pre-employment interview.

An employee's fraudulent claim in her CV to non-existent qualifications has also been held by the Labour Court to constitute a dismissible offence. Similarly, the CCMA has held the dismissal of an employee who misrepresented her previous work experience in her CV to be fair.

While an employee may be dismissed for fraudulent misrepresentation before commencement of employment, the general rule is that an employee is not required to disclose prejudicial information about his past to his future employer unless asked to.

However, in the event that such information renders the employee unfit for the position offered, the employee would be obliged to disclose it. In addition, an employee is obliged to disclose the information in the event that the employer would undoubtedly have employed another person to the position if the employer was aware of this information.

For instance, a security guard would be obliged to disclose a past criminal conviction for receiving stolen property knowing it to be stolen. Similarly, a teacher would have to disclose a past conviction for kidnapping.

In the matter of SACCAWU obo Waterson vs JDG Trading (Pty) Ltd [1999] 3 BALR 353 (IMSSA), the employee had been employed in the employer's finance department for about 12 years when the employer discovered that the employee had served a prison sentence for armed robbery. The employee had not disclosed this when he applied for his position and was dismissed.

Considering that the employee's position entailed the handling and banking of money, it was held that the employee's failure to disclose his past conviction amounted to fraud and that the employee's dismissal was justified.

- By Lavery Modise, director at Routledge Modise Attorneys and Sian Wilkins, associate at Routledge Modise Attorneys