The nature and extent of the obligation that rests on an applicant for employment to disclose the circumstances surrounding a termination of employment with a previous employer were examined by the Labour Court in the recent case of Intercape Ferreira Mainliner (Pty) Ltd v Mcwade and Others (JR158/17)  ZALCJHB 274 (18 September 2019).
The employee was employed by Intercape in May 2015 with a view to be groomed for the position of CEO. However, on June 2016 he was dismissed after a disciplinary hearing on allegations that included his failure to disclose to Intercape, prior to his appointment, the circumstances surrounding the termination of his employment with Cargo Carriers Zimbabwe.
The circumstances that he had failed to disclose, were as follows:
Employers have become hesitant to give proper references, for fear of legal liability. On the other hand, the unemployment rate, desperate job seekers and onerous dismissal requirements make prospective employers wary of appointments without reliable references.
In terms of civil litigation, giving an unfavourable reference might expose the employer to a potential defamation suit by the former employee, or a claim for loss of prospective gains as a result of non-employment by a prospective employer. However, a number of factors will have to be proven in order to succeed with either of these claims. Important considerations will include the reason for and content of the reference, and the relevance of the information provided.
An overly favourable but false reference that persuaded a prospective employer to appoint the employee, might be grounds to sue the former employer for damages based on negligent...