Introduction
In the context of South African labour law, honesty and trust are foundational to the employment relationship. When a job applicant deliberately fails to disclose a relevant criminal record during the recruitment process, this omission may have significant consequences for both the employee and employer, particularly where the nature of the offence directly relates to the responsibilities of the role.
The Law
South African law does not place a general obligation on job applicants to disclose their criminal history unless specifically asked. However, when the criminal offence is relevant to the job applied for—such as theft for a cashier role or fraud for an accounting position—failure to disclose such information may amount to material misrepresentation. This can be considered dishonest and may justify disciplinary action, including dismissal, if discovered after employment commences.
The Labour Relations Act 66 of 1995 (LRA), through its Code of Good Practice on Dismissal (Schedule 8), recognises that dishonesty, especially where it damages the trust relationship between employer and employee, may constitute valid grounds for dismissal. Importantly, any such dismissal must be both substantively and procedurally fair.
Legal Precedent
The Constitutional Court has reaffirmed this position in various judgments. For example, in Gcwensha v CCMA and Others [2006], the Court emphasised that trust is central to the employment relationship.
Facts
Mr. Gcwensha was employed by the Department of Social Development and applied for an internal promotion. On the application form, he was asked whether he had ever been subject to disciplinary action. He answered “no,” despite having been previously disciplined for misconduct. After this misrepresentation came to light, he was dismissed for dishonesty.
CCMA & Labour Court
Mr. Gcwensha referred the dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA), which found the dismissal substantively unfair and ordered reinstatement. The Labour Court dismissed the Department’s review application. The employer then appealed to the Constitutional Court.
Constitutional Court Judgment
The Constitutional Court overturned the CCMA’s award and upheld the dismissal. The Court found that the employee’s dishonesty—specifically, misrepresenting his disciplinary record on a job application—was serious enough to destroy the trust relationship. It emphasised that honesty is essential in the employment context and that dishonesty, even on a single occasion, may justify dismissal if it goes to the heart of the employment relationship.
Key Principles Established
- Trust is fundamental to the employment relationship, especially in public service.
- Dishonesty during recruitment (e.g. lying on application forms) is a serious form of misconduct.
- A single act of dishonesty may justify dismissal, particularly where it affects integrity and trust.
- Reinstatement is not appropriate where the trust relationship has broken down due to the employee’s misconduct.
Legal Significance
The case sets a precedent that deliberate misrepresentation of material facts during recruitment can justify dismissal, even for a first offence. It affirms that integrity and honesty are non-negotiable standards in employment, especially in positions of public trust.
Where an employee’s dishonesty—such as concealing a relevant criminal conviction—undermines that trust, the employer may be entitled to terminate the employment contract, provided fair procedures are followed.
Factors to Consider
However, it is not sufficient for the employer to act on suspicion or general prejudice. Employers must consider several factors before taking action against an employee for non-disclosure, including:
- The nature and seriousness of the offence.
- The relevance of the offence to the specific job.
- The time that has elapsed since the offence.
- Whether the offence has been repeated.
- Whether the employee was directly asked to disclose such information.
- Whether the non-disclosure was intentional.
For example, an offence committed many years ago, for which the individual has been rehabilitated, may carry less weight—especially if it does not relate to the job at hand. On the other hand, withholding a recent fraud conviction when applying for a finance position could be seen as an attempt to deceive the employer.
To manage this risk, employers are encouraged to ask clear questions about criminal records during the hiring process and include a declaration of honesty in application forms. Where necessary, they may also conduct criminal background checks with the applicant’s consent, as regulated under the National Credit Act and Protection of Personal Information Act (POPIA).
Conclusion
Non-disclosure of a criminal record during the hiring process can lead to dismissal, especially where the omission relates to the nature of the job and undermines the trust essential to employment. Both employers and employees should act transparently—employers by setting clear expectations, and applicants by disclosing relevant information when required—to foster a fair and trustworthy workplace.
