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Case law: Skeletons in your employee's closet... Can they come back to haunt you?

by , 26 August 2015
Your new employee didn't disclose important information when you recruited her. She's now working for you, but you found out information that might have stopped you hiring her. What can you do?

Let's look at the case between the Gauteng Department of Education (the GDE) and Mgijima. In this case the Court said it's an employee's duty to disclose any information that could affect the decision to employ her.

The facts:

  • Mgijima was working at the National Department of Arts & Culture (the DAC). On the 22nd February 2007 she applied for the position of deputy director general in the GDE.
  • She went for an interview at the GDE on 13th August.
  • The GDE didn't know, but Mgijima was on suspension from the DAC on the 3rd July. This was in connection with disciplinary charges the DAC was bringing against her.
  • Mgijima didn't tell the GDE she was on suspension.
  • The GDE specifically asked her if she had any 'skeletons in the closet'. She said no.
  • On 12th September the DAC gave Mgijima a formal notice of the disciplinary charges against her.
  • The GDE hired Mgijima for the position. She signed her employment contract on 5th November, effective from 1st December.
  • Around this time, Mgijima reached a settlement agreement with the DAC. The agreement said she'd resign from the DAC and they'd withdraw all charges against her.
  • The GDE later found out why Mgijima's employment with the DAC ended. This was some months after she started working there.
  • It thought the fact that she hadn't told them about her suspension and disciplinary charges was very serious.
  • It said that they'd known about the true facts at the time, it probably wouldn't have hired her.
  • The GDE said the fact that Mgijima didn't tell them what they thought material information, was a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees. This was even more true at the senior level she held.
  • The GDE laid charges against Mgijima and held a pre-dismissal arbitration. 

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The arbitration

The arbitrator found Mgijima didn't have to disclose this information to the GDE. He said it's because a person is innocent until proven guilty. He also said that just because there were claims of misconduct against her it didn't mean she was guilty of them. The arbitrator found that the GDE dismissed Mgjima unfairly. The GDE applied to the Labour Court (LC) to review this decision.

What did the Court decide?
The LC said the arbitrator incorrectly focused on if Mgijima was guilty of the charges by the DAC. The question wasn't if she was guilty or not. It was if she should've told the GDE she was suspended and facing disciplinary action.

The LC said the position she'd applied for with the GDE was a senior position. It said it needed 'unimpeachable honesty and integrity on the part of the its incumbent.' 
 It said that her failure to tell them about this even when they asked her meant the GDE couldn't make an informed decision. It also meant they couldn't see the effect, if any, of the entering in to.

The LC reviewed and set aside the arbitration award, and said the GDE was right to dismiss her.

What should you learnw from this case?

Potential employees must reveal any and all circumstances that could influence the possible employment relationship. You can take action if they don't disclose relevant circumstances. The specifics and seniority of the position determines what information is relevant and what candidates must disclose. It also depends on the information you specifically ask for.

So, to cover yourself, develop a full questionnaire that you give to potential candidates. Include specific questions you need answers to and that could affect your decision to hire that employee. Include a question that asks the employee directly of any previous dismissals or disciplinary action. 

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