Non-disclosure of vital information by the employee at the interview

The interviews are complete, the employer has shortlisted the best candidate, negotiated the salary the employee has been given an appointment letter. He goes on to show up at work on his first day, and appears to be the best bet for the company.

He works well for a week or two, and without anticipation, an anonymous tip from their former employers is received, revealing the new employee had been fired for fraud. What do you do?

The employees have duty to disclose pertinent information to the prospective employer during the interview. But what if the question is never asked during the interview? Why should the employee give an answer to a question that was never asked?

There is no straight answer to the above questions unfortunately. There are some personal things that the employee may justifiably not disclose in the interview. For example, the employee might not share that she is pregnant, HIV positive, has epilepsy, or is a sangoma because she fears discrimination.

Discrimination is real. The laws of this country do not allow the promotion of discriminatory conducts by the employer. The Employment Equity Act states as follows about discrimination under section 6 (1):

6. Prohibition of unfair discrimination

No one can unfairly discriminate against an employee in any job policy or practice. This includes actions based on race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, or any other arbitrary reason.

It is therefore not fair to expect an employee to disclose information pertaining to personal condition or circumstances. There could be exceptions that justify expecting disclosure of situations normally protected by the Employment Equity Act.

Exclusions may occur when the job's nature is affected by what the employee failed to disclose, even if the law protects that non-disclosure. For instance, an HIV positive person may not be reasonable expected to work in circumstances where he might get injuries and cuts which will result in him bleeding.

It's unfair for a pregnant woman to work where she might be exposed to harmful chemicals that could affect her unborn baby. The employer may under these circumstances be justified in taking an action for non-disclosure by the employee.

What if the employee has been previously convicted of fraud but was never asked a question which would have compelled him or her to disclose such?

The employee is typically required to disclose such negative information, but we are in a constitutional democracy. The CCMA or courts might in certain circumstances question the relevancy of disclosure of certain adverse information.

There have been CCMA and court cases whereby these kinds of issues were determined. For instance, in the case of Sylvester v Neil Muller Construction (2002, 1 BALR113) the employer dismissed the employer for failure to disclose he (employee), had been granted an 'ill-health retirement' by his previous employer. The CCMA found the dismissal unfair, stating the withheld information did not relate to job suitability, and did not harm the employer.

However, the employer does have a right to information and the employee has a corresponding duty to disclose - in the event of serious information; otherwise, the employer can be justified in terminating the employment on the basis of dishonesty or lack of trust. In the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggerio N.O and Others (2017), 38 ILJ 881 (LAC), the employer dismissed the employee for failing to disclose his previous criminal convictions when he applied for a security guard position.

The Labour Appeal Court found that the employee was obliged to disclose his previous convictions to his employer as the nature of the position required him to do so. It was further found that his dishonesty and/or failure to disclose this information had led to his employment approval, and therefore the dismissal was regarded as fair.

It is unfortunate that sometimes the employer as in the case above of G4S Secure Solutions had to go all the way to the Labour Appeal Court at a huge legal costs and loss of valuable time to be vindicated for its decision to dismiss the employee.

We need to protect the employer from losing money and time because of dishonest employees.

We suggest that the employer should include these questions during the interview, along with any previously prepared questions:

Could you let us know if there's any information imperative for us to have prior to our decision to hire you?

Have you shared all the information we need in this interview? Is there anything you haven't mentioned that could affect our relationship if you get the job?

Please note that if you are successful, you may still lose your job if it is ever discovered that you have withheld crucial information that should have been disclosed at the time of the interview, so please let us know if there is anything you would like to disclose at this moment before we finalise the process.

The questions above should be standard in interviews. This helps avoid leaving your fate to the CCMA, bargaining council, or labour court, which can be costly.

Article by Index Consulting team