Automated Summary
Key Facts
The applicant, Nokwanda Patience Fipaza, was previously dismissed by Eskom in 2006 for misconduct and a breakdown in trust. In 2008, she re-applied for a position at Eskom, did not disclose her prior dismissal in her CV or interview, and was later offered a job. Eskom withdrew the offer after discovering her non-disclosure, citing fraudulent misrepresentation and a loss of trust. The arbitration commissioner found her dismissal substantively fair, but the court set aside this finding, concluding she had no legal obligation to disclose her prior dismissal as it was not within her exclusive knowledge. The matter was remitted to determine appropriate remedies for the substantively unfair dismissal.
Transaction Type
Other
Issues
- The case addressed the legal principle of when an employee must disclose material information about their previous employment termination, specifically whether such disclosure is obligatory even if the employer does not explicitly request it, and if the applicant's exclusive knowledge of the dismissal is required for this duty.
- The court reviewed the arbitrator's finding that the applicant's non-disclosure destroyed the trust relationship with Eskom, determining if this conclusion was legally sound and whether it properly considered Eskom's ability to independently verify the applicant's employment history from its own records.
- The court examined whether the applicant's omission of her previous dismissal from her job application and interview amounted to fraudulent non-disclosure, considering if there was a legal obligation to reveal this information and whether her silence could be deemed dishonest.
Holdings
- The first respondent (Eskom) is ordered to pay the applicant's costs of the application, as the court found the commissioner's substantive fairness determination should be set aside.
- The matter is remitted to the commissioner to convene a hearing and determine an appropriate remedy for the applicant's substantively unfair dismissal, as the court does not have all relevant facts for this determination under section 193(2) of the LRA.
- The court sets aside the commissioner's finding that the applicant's dismissal was substantively fair, as the applicant had no legal obligation to disclose her previous dismissal by Eskom. The court determined that the commissioner erred in law by failing to consider that the applicant's dismissal was not within her exclusive knowledge and that Eskom could have ascertained the information from its own records.
Remedies
- The court sets aside the commissioner's award of 10th September 2008 which had found the applicant's dismissal substantively fair.
- At the hearing before the second respondent, both the applicant and first respondent (Eskom) are ordered to have the opportunity to lead evidence relevant to determining an appropriate remedy and present arguments on the issue.
- The case is remitted to the third respondent (Commission for Conciliation, Mediation and Arbitration) to convene a hearing before the second respondent to determine an appropriate remedy for the applicant's substantively unfair dismissal.
- The first respondent (Eskom) is ordered to pay the costs of the application to the applicant.
Legal Principles
The court applied the principle of good faith in employment contracts, emphasizing the implied duty of employees to act honestly and disclose material information when required. It held that the applicant was not obligated to reveal her prior dismissal by Eskom because it was not within her exclusive knowledge and Eskom could have accessed the information from its own records. The decision clarified that non-disclosure does not constitute fraud unless there is a legal duty to disclose, which arises only when the information is in the applicant's exclusive knowledge and its omission would mislead the employer.
Precedent Name
- Colonial Industries Ltd v Provincial Insurance Co. Ltd
- C J Auret v Eskom Pension & Provident Fund
- Local Road Transportation Board and Another v Durban City Council and Another
- Auret v Eskom Pension Fund
- Hoch v Mustek Electronics (Pty) Ltd
- Hira and Another v Booysen & Another
Key Disputed Contract Clauses
- The court analyzed Eskom's contractual right to withdraw the employment offer under the principle that material misrepresentation (or omission) can invalidate an agreement. The applicant contended she had no duty to disclose her prior dismissal as it was not explicitly requested, and the employer could have accessed the information from its own records. The court found Eskom's reliance on this clause to be legally flawed as the applicant's non-disclosure did not meet the threshold for material misrepresentation under the correct legal test.
- The dispute centered on whether the applicant's failure to disclose her previous dismissal breached the implied term of good faith in the employment contract. The court held that non-disclosure only constitutes a breach if the information is within the applicant's exclusive knowledge and its omission would mislead the employer. In this case, the applicant was not obligated to disclose her prior dismissal as Eskom could have independently verified it from its records.
Cited Statute
Labour Relations Act
Judge Name
Robert Lagrange
Passage Text
- This appears to me to be an instance in which the commissioner's failure to apply the correct legal test led him to deny the applicant a fair hearing in respect of the determination of the substantive fairness of the applicant's dismissal, which amounts to a reviewable irregularity. Accordingly, the commissioner's finding that the applicant's dismissal was substantively fair ought to be set aside.
- A party is expected to speak when the information he has to impart falls within his exclusive knowledge... and the information, moreover, is such that the right to have it communicated to him 'would be mutually recognised by honest men in the circumstances'.
- The commissioner's decision that the principle of fraudulent misrepresentation extends to this case necessarily entails finding as a matter of law that because the circumstances of a job applicant's prior termination of service the information constitute a material part of that employee's employment history, a job applicant is obliged to make it known to the employer, even when the employer does not solicit that information from the applicant.