Articles

Previous misconduct is a fireable offence

Sunday Times 11 January 2009
By Felicia van Rooi

Is there a duty on a prospective employee to disclose misconduct which he or she has committed or is suspected of having committed, if not specifically asked during an interview for employment?

In the recent Commission for Conciliation, Mediation and Arbitration (CCMA) case of ADT Security, the CCMA ruled that there was a duty on an employee to disclose to her employer that she had a criminal case of armed robbery pending against her.

The facts of the case were that the female was employed as an armed response officer at ADT's Port Elizabeth branch. She was the first female armed response officer to be employed by ADT in its Eastern Cape region. It published her appointment in a regional newspaper recording this fact.

After the publication of the article, ADT was informed by a member of the public that the female had a criminal charge of armed robbery pending against her. The case subsequently received widespread media coverage in the regional newspaper. As result, ADT charged the employee with, among others, her failure to disclose past misconduct during her interview. She was dismissed after a disciplinary hearing.

She referred an unfair dismissal dispute to the CCMA. The CCMA ruled that her dismissal was fair. The CCMA stated that there was a duty on her to disclose the pending criminal case against her during the interview, even though she was not asked to do so. The CCMA took into account the nature of the position that she occupied, the nature of the criminal case against her and the damage that the newspaper articles had done to ADT.

In the Labour Court cases of Oracle Corporation and Auret v Eskom Pension Fund, it was found that an employer is entitled to terminate an employee's employment if there are material misrepresentations or omissions regarding an employee's past employment.

Our courts have entrenched the principle that there is a duty on employees to disclose past misconduct. Still, it is advisable for employers to ask prospective employees whether they committed or were suspected of having committing misconduct at their previous employers.

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