When prospective employees apply for available positions, exactly how far does the duty to disclose 'skeletons in the closet' go? Must prospective employees disclose why they left their previous employment and whether disciplinary action is pending if they are still employed? The Labour Court recently dealt with this issue.

Ms Mgijima was employed by the National Department of Arts and Culture (DAC) when on February 22 2007 she applied for the position of deputy director general in the Gauteng Department of Education (GDE). Mgijima attended an interview with the GDE on August 13 2007. Unbeknown to the GDE at the time, the DAC had suspended Mgijima on July 3 2007 in relation to disciplinary charges that it had indicated it would bring against her. In her interview, Mgijima did not disclose that she was suspended, and when she was specifically asked whether she had any 'skeletons in the closet', she replied in the negative. On September 12 2007 the DAC gave Mgijima formal notice of the disciplinary charges against her. In the meantime, Mgijima succeeded in her application for the position at the GDE and signed a contract of employment on November 5 2007, effective from December 1 2007. Around that time, Mgijima entered into a settlement agreement with the DAC, in terms of which she resigned from the DAC and the DAC in turn withdrew all charges against her.

The GDE came to learn of the circumstances of the termination of Mgijima's employment with the DAC some months after she commenced working for it. The GDE considered her lack of disclosure – of both her suspension and pending disciplinary charges – at the time of her interview to be serious, and claimed that had it known the truth, it would in all likelihood not have appointed her. Further, the GDE considered that Mgijima's failure to disclose what it considered to be material information constituted a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees – particularly at the senior level of deputy director general.

Consequently, the GDE brought charges against Mgijima and a pre-dismissal arbitration was convened. The arbitrator found that Mgijima should not be dismissed. The GDE applied to the Labour Court to review this decision.

The court concluded that the position which Mgijima had applied for was a senior one and, as such, it required "unimpeachable honesty and integrity on the part of its incumbent". Further, Mgijima's failure to disclose material information in response to an express invitation to do so deprived the GDE of the opportunity to make an informed decision as to the effect – if any – of the suspension and pending charges on the contemplated employment relationship. The arbitration award was therefore reviewed and set aside.

This judgment highlights the responsibility of prospective employees to disclose fully any circumstances that may reasonably influence the prospective employment relationship. It also highlights the employer's recourse should any relevant information not be disclosed. The determination as to what information is relevant and needs to be disclosed will depend on the specific position applied for, the seniority of the position and whether disclosure was specifically requested.

For further information on this topic please contact Lizle Louw at ENSafrica by telephone (+27 21 410 2500), fax (+27 21 410 2555) or email ([email protected]).