09/10/2014
On 9 Oct 2014 23:42, "Muzi Khanye"
The truth but not the whole truth and the effect on integrity
An employee was dismissed for allegedly being less than honest in completing her curriculum vitae (“CV”). The CCMA found the dismissal to be fair but the Labour Court thought otherwise and referred the matter back to the CCMA. The Labour Appeal Court (“LAC”) judgment – Eskom Holdings Ltd v Fipaza (2013) and the appeal by Eskom was disallowed. The LAC upheld the order of the Labour Court referring the matter back to the CCMA for reassessment of the remedy for unfair dismissal.
After working for a number of years and in 2003 a senior employee at Eskom was allowed to undertake post-graduate studies in the United Kingdom. The return date was fixed as 5 July 2006. After failing to return on that date Eskom extended it to 5 September 2006. Eskom informed her in writing that failure to report for work would result in disciplinary action which could result in dismissal. She failed to report on that day. Eskom ‘charged’ her with misconduct, namely ‘absence from duty without leave’ and scheduled a disciplinary enquiry for 29 September 2006.
The employee failed to appear at the enquiry and Eskom found her ‘guilty’ of the charge and dismissed her summarily (without notice pay). It was argued that her misconduct had ‘destroyed the trust relationship’. Her appeal was unsuccessful. But in the outcome of the appeal Eskom informed her that ‘should a vacancy exist within Eskom for which your skills are required, kindly follow the normal recruitment process’.
On 25 April 2008 Eskom informed her that her application for the job of ‘senior advisor: measurement and verification – corporate services division’ was successful and offered her the position at a fixed salary with a starting date of 1 June 2008. She accepted the written offer and notified her current employer that her services would end on 31 May 2008.
On 27 May 2008 Eskom informed her in writing that it intended to withdraw the offer. Eskom stated that she had failed to disclose that she had been dismissed by Eskom in 2006 and invited her to respond. She did so on 29 May 2006 and then reported for work on Monday 2 June 2008 at 8.00. At 10.00 she was instructed to leave and await Eskom’s response to her letter by 4 June 2008. Eskom then advised her it had withdrawn the offer of employment whereupon she referred a dispute of unfair dismissal to the CCMA.
The CCMA decided that the dismissal was substantively fair but procedurally unfair and compensation equal to three months’ pay was awarded. Her conduct was treated as ‘fraudulent non-disclosure’ of a material fact, even though she answered all the questions truthfully.
The Labour Court reviewed the award, set it aside and referred the dispute back to the CCMA to reconsider a more appropriate remedy, including reinstatement. The LAC held that she had truthfully answered all the questions, including the fact that she had previously been employed by Eskom. Eskom could not have expected her to volunteer additional information that was within Eskom’s knowledge.
The LAC held that the reason for her dismissal in 2006 “did not justify a carte blanche conclusion that her integrity level was not up to standard. It is clear that the circumstances surrounding her failure to report for duty timeously were somewhat unique, although these did not serve to exonerate her from blame, hence she was charged for misconduct and convicted accordingly. However, without more ado, the fact that the misconduct did not involve dishonesty, this was a significant factor which, in my view, would tend to militate against the finding of an irreconcilable breakdown in trust relationship”.
As the facts in this case are rather unusual this judgement should not be regarded as authority permitting applicants to withhold relevant information when applying for jobs. Perhaps it would be prudent for employers to require applicants to declare that they have not withheld any information that might negatively impact on the inherent requirements of the job. Be open as you are required to build a sustainable future employee employer relationship.
Authority : IR Network
