Am I obliged to disclose my employment history?

“The truth will set you free. But not until it’s finished with you.” – David Foster Wallace

Article by Tumi Ntshekang (Labour Relations Officer)

Introduction

By default, we want to maintain a clean employment record, void of scandal or skeletons that might hinder us in securing prospective new employment should such information be disclosed. We often leave our former employment on bad terms, and thus, whilst applying for new employment, we elect to omit certain information that could harm the prospects of securing a new job.

The prevalent question is – Is there a duty to disclose information pertaining to your employment history or any material information that may affect the employer’s decision to employ you?

Why is there a need to disclose?

The purpose of disclosing all pertinent information when being interviewed or applying for a position is to, among other things, allow the prospective employer the opportunity to apply their mind when deciding whether or not to employ you. A misrepresentation of the true state of affairs or failure to disclose certain information may have an impact on the employer’s decision to appoint you. The latter, when discovered, may result to your new employer charging you with misconduct, which may warrant a dismissal.

One of the fundamental principles of an employee and employer relationship is the bilateral “duty of good faith” towards the other party to the relationship.  

In one article, MISA explained that the common law duty of good faith places an obligation on you to act honestly (free of deceit; truthful and sincere) and lawfully, with the purpose of upholding the contract of employment or employment relationship. Thereby placing an exception on employees and prospective employees, alike.

What am I obliged to disclose?

In the case of Intercape Ferreira Mainliner (Pty) Ltd v McWade and others [2020] 2 BLLR 199 (LC), the Labour Court (LC) was required to decide on whether a duty rests on an employee to disclose to his or her future employer information which may affect the employer’s decision to employ him or her, and whether the failure to disclose such information constitutes misconduct, capable of dismissal.

The LC held that “outside the category of deliberate, false representations of fact, a prospective employee may nonetheless be required to disclose information not specifically requested, if that information is material to the decision to employ; or where (as in the present instance) a question is asked, that a less that honest and complete answer might form the basis for a dismissal when the truth is ultimately discovered.”

In Galesitoe v CCMA and others [2017] 7 BLLR 690 (LC) the LC reiterated that the information withheld (or disclosed) should be material to the decision to employ, raising that the exception is inherent to ones ethics, (regardless of whether a settlement agreement had been reached,) and held that “it is not unreasonable to ensure that a person applying for the senior level of 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. This would give rise to an obligation to disclose.”

Conclusion

You should always be honest about your employment history when applying for employment and most importantly, during interviews. Do not wait to be asked, but disclose what is materially relevant in the circumstances.

A failure to disclose may result in your dismissal, as such action constitutes misconduct. It is your duty, as an employee, to disclose to a prospective employer any material information that may have an impact on the employer’s decision to appoint you. 

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