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Sharon
19-04-2011, 19:59
SA Labour Guide (http://www.touchstream.co.za/display.php?M=3468360&C=f1e755f7c29e5d8d3ab8c8900af21f65&S=5466&L=854&N=3026)

Law Reports: March 2011
Advocate Nicolene Erasmus

Non-disclosure during interview at new employer of pending disciplinary action


MEC for Education, Gauteng v Mgijima & others [2011] 3 BLLR 253 (LC)

During an interview at the Gauteng Department of Education (GDE), Mgijima (the employee) failed to disclose that she had been suspended by the Department of Arts and Culture (DAC) where she was working at the time.

Mgijima was appointed as Deputy Director at the GDE, and it was only after she had commenced working there that the employer learned of the circumstances of the termination of her employment. She had signed a settlement agreement in terms of which the DAC withdrew the charges on condition that she resigned.

The GDE considered her lack of disclosure of her suspension and pending disciplinary charges to be of a serious nature, and claimed that had it been aware of the true facts at the time, it would in all likelihood not have appointed her.

Also, her failure to disclose constituted a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees, particularly at the level of deputy director general.

In a pre-dismissal arbitration the arbitrator found the employee not guilty of the charges brought against her.

On review, the contention that the arbitrator failed to apply his mind to the issue before him, rested primarily on the following passage in his award: “With the greatest of respect I do not agree that there was any duty on the employee to disclose that she was on suspension pending a disciplinary hearing into allegations of misconduct which were later on proffered against her.

Firstly, there is a well developed principle in the South African law stating that a person remains innocent until proven guilty. Whilst I accept the employer’s submission that the employee was charged with allegations of misconduct, which is common cause; the fact remains that these were mere allegations of misconduct and were not proven and the employee was not granted and (sic) opportunity to defend herself and offer a rebuttal of the charges.

Thirdly, the charges were withdrawn by the Department of Arts and Culture in writing and in exchange for the employee tendering her resignation, which she duly did.

The question posed toward the end of the interviews regarding skeletons in the cupboard /closet that allegedly placed a duty on the employee to disclose her past disciplinary record does not hold water.

Firstly: apart from being vague to elicit the correct answer it is subject to different interpretations by different people.

Secondly it is my view that skeletons in the cupboard could refer to two things; ie unproven allegations of misconduct against an employee or proven allegations of misconduct against an employee. It is my respectful view that it refers to the latter. In this particular case, apart from the fact that these were unproven allegations of misconduct against the employee, they were also subsequently withdrawn thereby effectively leaving the employee with a clean record, and consequently no duty to disclose anything to the interview panel”

The court held that the issue before the arbitrator was not whether Mgijima was guilty, but merely her non-disclosure at the time of her interview of the fact that she was on suspension and facing serious disciplinary charges.

The post for which Mgijima applied was one that required unimpeachable honesty and integrity on the part of its incumbent.

Mgijima’s failure to disclose material information in response to an express invitation to do so deprived the GDE of the opportunity to make an informed decision as to the effect, if any, of the suspension and pending charges on the contemplated employment relationship.

It was held that the arbitrator failed to apply his mind properly to the issue before him, and that in doing so, he acted other than as a reasonable decision maker would.

The arbitration award was reviewed and set aside.