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Sins of the Past

SINS OF THE PAST: What if an employee fails to disclose a criminal record in a job interview?

   

Trust

Trust is the glue which holds relationships together. Like infidelity in a marriage, the breach of trust can cause an irretrievable breakdown in the working relationship. The relationship may recover if the dishonesty was “not so serious” (if there is such a notion) – and if the employee shows genuine remorse. But there’s seldom a way back if “gross dishonesty” was involved.

Dishonesty in job interview

The Labour Appeal Court (LAC) made this very clear in a recent case which involved the dismissal of a dishonest employee who worked for a security company.[1] When he applied for a job in 1996, the employee was asked in a written application – “Have you ever been convicted of a criminal offence?”

He replied “No” and the company employed him as a security guard. Fourteen years later, he applied for a promotion. The company conducted a criminal record check. It revealed that the employee had two previous criminal convictions. One was for rape in 1982 for which he got six lashes as a juvenile 17 year old. The other was for assault with intent to do grievous bodily harm in 1991 for which he paid a fine of R200.

Dismissal

The employee’s defence was that he did not know that he had been convicted of a criminal offence because he had not gone to jail. Concerning his rape conviction he stated that: “I was 17 and did not understand the law. It was not rape. She was my girlfriend.” The company dismissed him for ‘misrepresentation and/or dishonesty’ following a disciplinary enquiry. The arbitrator found the dismissal to be substantially unfair and ordered reinstatement. The Labour Court agreed with the arbitrator’s decision.

 Value of honesty

The case finally found its way to the LAC, where Judge Savage AJA upheld the employer’s appeal and had this to say –

 “[40]   The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. 

Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”. Obtaining employment on false pretences whether by misrepresenting qualifications, skills, experience or prior work history has been found to justify dismissal, with it stated in Boss Logistics v Phopi and others that if this were not so, a sanction short of dismissal would only serve to reward dishonesty.”

TIP:

An employee must honestly disclose of all relevant information, such as a criminal record, in a job interview. This is especially the case if a high degree of trust is an implicit requirement for the job, such as a security guard. Dismissal will be fair even where the misrepresentation is discovered after 14 years and the employee has a good service record. Employers should conduct criminal record checks of all current employs to find out if there may be unknown sins of the past. 

[1] G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55 (25 November 2016)

Source:  Worklaw Annual Labour Law Update 2017

 

Patrick is well known in South Africa as an expert in labour and commercial dispute resolution, a field in which he has over 25 years’ experience.
DEALE ATTORNEYS now offers an expert online “NO-WIN NO FEE” service for DISMISSAL ARBITRATIONS. It equips employers & senior employees to prepare & present their cases in arbitration with confidence.  Call Patrick now on 0833758771 for a FREE CONSULTATION. 


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