Job seekers duty to reveal skeletons in cupboard

Dec 17, 2014

We recently posted an article about what information a job applicant should disclose at a job interview. Reference was made to the case between the Gauteng Department of Education (the GDE) v. Mgijima & Others [2011] 3 BLLR 253 ( LC),  when the Labour Court held that it is an employee’s duty to disclose any information that could affect the decision to employ him. We undertook to provide more information on the facts of the case, the arbitrator’s finding and the Court’s decision in a follow-up article. So here it is!
Lets look at the case……
The facts:

  • Mgijima was working at the National Department of Arts & Culture (the DAC). On the 22nd February 2007 she applied for the position of deputy director general in the GDE.
  • She went for an interview at the GDE on 13th August.
  • The GDE did not know, but Mgijima was on suspension from the DAC on the 3rd July. This was in connection with disciplinary charges the DAC was bringing against her.
  • Mgijima did not tell the GDE she was on suspension.
  • The GDE specifically asked her if she had any “skeletons in the closet”. She said no.
  • On 12th September the DAC gave Mgijima a formal notice of the disciplinary charges against her. The GDE hired Mgijima for the position. She signed her employment contract on 5th November, effective from 1st December.
  • Around this time, Mgijima reached a settlement agreement with the DAC. The agreement said she had resign from the DAC and they would withdraw all charges against her.
  • The GDE later found out why Mgijima’s employment with the DAC ended. This was some months after she started working there.
  • It thought the fact that she had not told them about her suspension and disciplinary charges was very serious.
  • It said that they had known about the true facts at the time, it probably would not have hired her.
  • The GDE said the fact that Mgijima did not tell them what they thought material information, was a gross failure on her part to comply with the standards of trust, honesty and candour required of prospective employees. This was even more true at the senior level she held.
  • The GDE laid charges against Mgijima and held a pre-dismissal arbitration.

The arbitration…
The arbitrator found Mgijima did not have to disclose this information to the GDE. He said it is because a person is innocent until proven guilty. He also said that just because there were claims of misconduct against her did not mean she was guilty of them. The arbitrator found that the GDE dismissed Mgjima unfairly. The GDE applied to the Labour Court (LC) to review this decision.
What did the Court decide?
The LC said the arbitrator incorrectly focused on if Mgijima was guilty of the charges by the DAC. The question was not if she was guilty or not. It was if she should have told the GDE she was suspended and facing disciplinary action.
The LC said the position she had applied for with the GDE was a senior position. It said it needed “unimpeachable honesty and integrity on the part of the its incumbent.” It said that her failure to tell them about this even when they asked her meant the GDE could not make an informed decision. It also meant they couldn’t see the effect, if any, of the entering in to.
The LC reviewed and set aside the arbitration award, and said the GDE was right to dismiss her.
What should an employer learn from this case? Read our article posted on 3 December 2014 titled – Disclosure of information – Job Interview.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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