How much and what about my previous employment record am I required to disclose to my prospective employer when I am interviewed for a position? Do I only have to answer the direct questions they ask me and disclose the information in respect of those questions, or is there an obligation on me to disclose more information?
These where the questions that confronted the Labour Court in InterCape Ferreira Mainliner v McWade. The case concerned the nature and extent of the obligation that rests on an applicant for employment to disclose the circumstances surrounding the termination of his employment with his previous employer. Interestingly, the Labour Court concluded that the obligation to disclose information went beyond answering the specific questions asked of the employee.
Mr McWade was employed by InterCape as a general manager in May 2015 with the intention of grooming him to be appointed as the Chief Executive Officer. However, before being so appointed he was dismissed because he failed to disclose to InterCape, prior to his appointment, the circumstances surrounding the termination of his employment with Cargo Carriers Zimbabwe.
What Mr McWade failed to disclose was that during August to October 2014 Cargo Carriers made allegations against him that extended to bribery and corruption, and the use of company assets without prior permission. He was suspended as a result.
During his suspension the presidency of Zimbabwe, the Zimbabwean Labour Court and the Zimbabwean Trade Union Congress became involved in the dispute and he was summoned to appear at the Presidency and the Labour Court on different occasions. He did not heed the summonses. Consequently military personnel physically took him to the Zimbabwean Department of Labour to answer questions regarding his suspension.
After being suspended for 38 days Mr McWade decided to sue his employer but papers were not served and the parties concluded an agreement in terms of which his employment was terminated.
In his application for employment Mr McWade stated “New owners, Zim economy” as the reason for leaving the employ of Cargo Carriers.
In the interview process Mr McWade was specifically asked about the circumstances of his leaving Cargo Carriers. He did not mention any of the allegations against him, the interventions of the Presidency and the Labour Court, or the settlement agreement. When asked in a second interview his explanation was that there was a “difference of opinion”.
Finally, in a third meeting with the Board of InterCape, Mr McWade was asked if there was anything that should concern InterCape in relation to Mr McWade’s departure from Cargo Carriers and in responding Mr McWade again did not mention the issues described above.
When these facts were discovered Mr McWade was dismissed. He challenged that dismissal in the CCMA, where the arbitrator found his dismissal to have been substantively and procedurally unfair. On review before the Labour Court, Justice van Niekerk found otherwise.
The Labour Court firstly endorsed the views expressed by the Labour Court in Galesitoe v CCMA and others that –
“… it is not unreasonable to ensure that a person applying for the senior level post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose….”
The Labour Court then drew an important factual distinction in this case when it stated what escaped the arbitrator was that InterCape’s case was not that Mr McWade had made a material misrepresentation of fact or that he had given false information during the course of the interview process. InterCape’s case was that given the circumstances, Mr McWade ought, properly in response to the question regarding the termination of his employment with Cargo Carriers, to have disclosed the facts surrounding the termination of his employment with Cargo Carriers, and that his failure to make that disclosure constituted a serious act of misconduct.
The Labour Court did point out that, of course, the failure to make the disclosure must be material, at least in the sense that the prospective employer would have conducted its own enquiry into the relevant events and determined eligibility or suitability for employment as a consequence. The Labour Court was in little doubt that in these circumstances the failure to disclose was material and that given the seniority of the position for which Mr McWade had applied, and given the nature of the circumstances surrounding the termination of his employment with Cargo Carriers, Mr McWade ought to have made full and proper disclosure of the allegations of bribery and corruption, the intervention by the military, the president, and the litigation against his former employer. This was particularly so when InterCape as the prospective employer was a family owned business with business interests in Zimbabwe and Mr McWade had been specifically appointed to take over as the Chief Executive Officer.
The important learning from this is that misconduct in these circumstances does not only have to be in respect of representations the employee may make, but also in respect of facts the employee may not disclose. But what is important is that the prospective employer must have asked sufficient questions, even in general terms, to have placed the employee in a position where the employee was required to disclose the information.
