What are we to make of an article entitled “Employee must disclose misconduct” in the April 2009 Business Law & Tax Review supplement advising employers in effect to obtain a type of indemnity or guarantee from prospective employees about their past conduct?   Should employees not be advised to do the same to  prospective employers?

First, there is a reference to a purported arbitration award of the CCMA that is not dated nor referenced to enable anyone to find it.   Second, it is not made clear that arbitration awards are not binding and may have persuasive merit only.   Third, reference is made to two unreferenced Labour Court decisions as authority for the statement that employers are entitled to terminate employment if employees materially misrepresent their past employment.

The Labour Court decision does not have any reference but is in fact Oracle Corporation SA (Pty) Ltd v CCMA [2005] 10 BLLR 982; (2005) 26 ILJ 1472 (LC) where an applicant for a senior managerial post deliberately omitted certain relevant information from his CV.   The other decision is presumably one decided in 1996 by the now defunct Industrial Court.   The case is reported as Auret v Eskom Pension & Provident Fund [1996] 7 BLLR 838 (IC) and does not appear to have any relevance, let alone be binding.

Currently both common law and labour law recognise a reciprocal duty of trust and confidence on parties to an employment relationship.   Employers, in particular, must deal fairly with their employees.   Clearly any non-disclosure by an employee of material information, whether before or after employment, has the potential to destroy or seriously damage that relationship.

The important point is to examine the consequence of any act or omission rather than the conduct itself.

For example employers must prove that any decision to terminate employment was valid and for a fair reason.   This means the conduct (act or omission) destroyed or seriously damaged the employer’s trust and confidence (or made continued employment intolerable).   There are 2 provisos: first, there must not have been any reasonable or proper cause; and second the employees conducted themselves in a manner likely to destroy or seriously damage that special relationship.

These binding principles were established by the former Appellate Division of the Supreme Court (now the Supreme Court of Appeal) in CSIR V Fijen [1996] 6 BLLR 685 (AD) and confirmed recently in Murray v Minister of Defence [2008] 6 BLLR 513 (SCA) per Cameron JA.