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February 28, 2016
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An ounce of prevention is worth a pound of cure
Benjamin Franklin
In South Africa it can be difficult to dismiss employees due to our inflexible labour laws. This makes firing employees a potentially expensive and time consuming exercise, which tends to put the business on a defensive footing and distracts it from performing its core functions.
Prevention being better than cure, having well-thought-out recruitment procedures is thus an important issue for any business.
What does a prospective employee have to disclose in the recruitment process?
In general the onus falls on the employer to find out information that would preclude a person from getting a position. In a recent case for example a CCMA Commissioner found there is no general requirement for an employee to disclose information prejudicial to the employee applying for the job.
However, it also recognised that there are occasions when an applicant needs to make disclosure, such as a mine manager who was an alcoholic. A cashier convicted of fraud or theft would be another example. The onus would generally only rest on the employee to provide adverse information during the recruitment process if the information is crucial to the performance of the job.
Also, in general the more senior the job, the greater is this onus on the applicant.
Of interest is that our courts have in the past upheld dismissals when the employee has given false answers relating to aspects such as:
- The employee’s identity
- The CV submitted
- Qualifications and
- References given
What employers can and can’t ask
The employer needs to take care about what information they can request. The Employment Equity Act prohibits questions on such topics as race, religion, sexual orientation and political opinion unless any of the criteria is directly relevant to the job in question.
The employer should be satisfied that the knowledge gleaned from questions asked is pertinent to the particular position being filled. Remember a prospective staff member can challenge why information is requested. Generating interview questions from a job description helps ensure that relevant questions are asked.
So, be thorough in the recruitment process. Seek professional advice and ensure that before any sensitive data is requested (criminal checks for example) you obtain written consent from the applicant. There should also be a signed declaration by the prospective employee that all information supplied is truthful and accurate. Also plan and be thorough when checking references, as you can get crucial information from this.
What if an applicant withheld information?
If you subsequently find out that material facts were not disclosed by the employee and you wish to sanction him or her, make sure your decision can withstand scrutiny – for example in the CCMA case referred to above a senior manager was dismissed for not disclosing that criminal charges had been laid against her by her previous employer, nor that she had been dismissed for fraud and dishonesty. The Court held that as the manager had not actually been convicted of the charges, and hadn’t been asked about any charges in the interview process, there was no onus on her to disclose this information. Again this emphasises the importance of carefully planning interview and reference-checking questions.
Clearly recruitment is a delicate process. It is well worth investing in this to ensure employers find out all relevant employee information before hiring. The onus for this lies mainly with the employer.
It is far better to have a rigorous recruitment process than for you to spend futile time trying to manage (and dismiss) staff who probably should never have been appointed in the first place.
Getting the right staff members means higher productivity which can only benefit your organisation.
Note: Our labour laws are complex and this topic in particular is fraught with grey areas and differences of opinion. The consequences of getting this wrong are serious, so take professional advice upfront to cover your position!
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