Written by Sharon Mongalo
When assessing what an employee must disclose during an interview, it is often argued that there is no legal duty to disclose personal information including for example, political views.
The Employment Equity Act, 55 of 1998 (the EEA) provides that an employee may not be discriminated against unfairly, which could occur when questions are asked during an interview. At the same time, employers naturally want to get as much information as possible about a prospective employee before they can make a decision to appoint them.
In the recent case of Intercape Ferreira Mainliner (Pty) Ltd v McWade and Others (JR158/17)  ZALCJHB 274 (18 September 2019) the Labour Court dealt with the nature and extent of the obligation that rests on an applicant for employment to disclose, in particular, the circumstances surrounding a termination of employment with a previous employer.
Mr McWade was employed as a general manager at Cargo Carriers Zimbabwe (Cargo). It was envisaged that he would be groomed to be appointed to the position of Chief Executive Officer. In June 2016 he was however dismissed after a disciplinary hearing relating to four allegations of misconduct. The most significant allegation was that prior to his appointment at Cargo, he had failed to disclose the circumstances surrounding the termination of his employment with his previous employer. Mr McWade had signed a non-disclosure agreement and a mutual separation agreement with his previous employer after very serious accusations had been made against him and after a 38-day suspension.
At the arbitration hearing, where Mr McWade contested the fairness of his dismissal, the arbitrator differentiated between instances where false information is given and where the prospective employee fails to disclose relevant information. The courts have considered the giving of false information to be a misrepresentation of facts or dishonesty where an intention must be shown on the part of the employee. In contrast, a failure by the employee to disclose information cannot be viewed as submitting false information since there is no misrepresentation or dishonesty as long as there is no legal duty to disclose. On this basis, Mr McWade’s dismissal was found to be procedurally and substantively unfair.
On review the Labour Court held that the arbitrator did not appear to recognise that, outside of the category of deliberate misrepresentation, a prospective employee may be required to disclose information not specifically requested if that information is material to the decision to employ. Also, where a question is asked, a less than honest and complete answer might form a basis for dismissal when the truth is ultimately discovered. In the case of persons applying for senior positions, it is not unreasonable to expect them to realise that the nature of their relationship with their former employer will be a material consideration for a prospective new employer which could affect their employment prospects (see Galesitoe v CCMA & others  7 BLLR 690 (LC)). The Labour Court held that the facts relating to the termination of Mr McWade’s previous employment were patently material and a disclosure was therefore required. His failure to make the disclosure therefore constituted an act of misconduct sufficiently serious to warrant his dismissal.
In balancing the employee’s right to privacy and the employer’s right to make an informed decision, it is thus clear that important information that could affect an employer’s decision to appoint – for example, to shed light on the candidate’s suitability or assessment of skills – must be disclosed.