A question that often arises when prospective employees apply for available positions, is exactly how far does the duty to disclose “skeletons in the closet” go, i.e. does a prospective employee have to disclose the reason why he left his previous employment and whether disciplinary action is pending if he is still employed? The Labour Court has recently dealt with this issue in the matter of the Gauteng Department of Education (“the GDE”) and Mgijima.

Mgijima was employed by the National Department of Arts & Culture (“the DAC”), however, on 22 February 2007 applied for the position of deputy director general in the GDE. Mgijima attended an interview with the GDE on 13 August 2007. Unknown to the GDE at the time, Mgijima had been suspended by the DAC on 3 July 2007 in relation to disciplinary charges that the DAC had indicated it would bring against Mgijima. Mgijima did not disclose that she was on suspension, and when she was specifically asked whether she had any “skeletons in the closet”, she replied in the negative. Soon after the interview, on 12 September 2007, the DAC gave Mgijima formal notice of the disciplinary charges against her. Mgijima was successful in her application for the position at the GDE and signed a contract of employment on 5 November 2007, effective from 1 December 2007. Around this 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 at the GDE. The GDE considered her lack of disclosure of her suspension and pending disciplinary charges at the time of her interview to be of a serious nature, and claimed that had it been aware of the true facts at the time, it would in all likelihood not have appointed her to the position in the GDE. Further, the GDE considered that Mgijima’s failure to make disclosure of 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.

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

The Labour Court concluded that the position which Mgijima applied for with the GDE was a senior position and that it required “unimpeachable honesty and integrity on the part of its incumbent” and further that 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 certainly highlights the responsibility of prospective employees to make full disclosure of any and all circumstances that may reasonably influence the prospective employment relationship. It also highlights the employer’s recourse should relevant information not be disclosed. The determination as to what information is relevant and needs to be disclosed will of course depend on the specific position applied for, the seniority of the position and whether disclosure was specifically requested.