Case Summary Review

Case summary review: a review of an arbitration award in terms of Section 145(1) of the Labour Relations Act-failure to disclose an adverse relationship with the previous employer. The main issue with this case is whether candidates at the interview stage have a duty to disclose their adverse relationships with previous employers. This arbitration award was successfully reviewed and set aside as the dismissal of the applicant was found to have been substantively unfair. The applicant was reinstated with backpay limited to 12 months and order of costs against the respondent party.

Lesson learned – the applicant was not questioned directly during the interview whether she was aware of any pending disciplinary action against her. If the applicant had lied about this to her current employer, then same could have been construed as misrepresentation and unfortunately, this was not the case. The respondent’s contention was that the applicant had not been honest and had failed to disclose to the third respondent that she was under an investigation.

Conclusion-the learned Judge concluded that in his view, it cannot be said that the so-called non-disclosure of the adverse relationship amounted to any form of misrepresentation on the applicant’s part, nor constituted misconduct which became a dismissible offense. The reason for the applicant’s dismissal by the third respondent was not for a fair and valid reason.

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