It is a management prerogative to know all facts about a prospective employee that are relevant to a job application. That is, the employee is obliged to:
• Divulge information relevant to the decision to appoint where it is clear that the employer requires such information
• Answer certain questions truthfully
• Desist from exaggerating job qualifications.
DIVULGING RELEVANT INFORMATION
For example, where an employee applies for the job of a driver he/she would be required to divulge that he/she does not have a driver’s licence.
However, where the information withheld is not relevant to job suitability it would be dangerous for the employer to act against the employee. For example, in Sylvester vs Neil Muller Constructions (2002, 1 BALR 113) the employee was fired for having failed to inform the employer that he had been given ill health retirement by a previous employer. The CCMA found the dismissal to be unfair because the withholding of the information did not prejudice the employer.
ANSWERING QUESTIONS TRUTHFULLY
Generally, job applicants are required to answer relevant questions truthfully during the screening process. However, failing tp do so does not always merit dismissal.
In NUMSA obo Engelbrecht vs Delta Motor Corporation (1998, 5 BALR 573) the employee was fired for failing to disclose that he had been fired for theft by his previous employer. The CCMA found that the dismissal was unfair and ordered the employer to reinstate the employee because the employer had condoned a similar lie told by another employee.
EXAGGERATING JOB QUALIFICATIONS
It is insufficient merely to allege that the employee has lied or exaggerated. In NETU obo Van Dyk vs Amcoal Colliery and Industrial Operations Ltd (2001, 12 BALR 1295) the employee was dismissed for lying about his qualifications as an artisan. However, the employer was unable to prove that Van Dyk had lied. The arbitrator therefore ordered reinstatement with full back pay.
The above case law warns employers that their management prerogative to dismiss liars is substantially limited. They need to be able to prove that the employee had dishonestly hidden facts relevant to the inherent requirements of the job. Such proof, together with proof of consistent discipline, must be brought to a disciplinary hearing chaired by an impartial chairperson who is fully competent to gather and process the evidence and arrive at a finding that will stand up in court.
To book for our 9 March seminar in Johannesburg on REGAINING MANAGEMENT PREROGATIVE please contact Ronni via email@example.com or 0845217492.
Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting