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HR 101 – Failure to Disclose – Part 1

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Please note that this pertains to South African Labour Relations and Best Practice requirements

I certainly have had a few clients that have been on the receiving end of this particular situation and all for the wrong reasons – however this topic, like most connected to HR, is a double sided coin and I will endeavour to illustrate this by means of two stories – one will be a happy ending for the employer and one won’t.

Let’s deal with the happy ending first and bring out my favourite protagonists.

Mike owns a high end jewellery store in a popular very busy mall. He is well situated in the mall and his store is internationally known and respected. His hand crafted, individually designed jewellery is highly sought after and prized.

Mike’s mother used to do his books and she was also the cashier in the store, but now in her 80’s she has decided to finally retire. Mike is looking for someone to replace his mother – someone who is not only competent with accounting but also someone he can trust.

Mike puts the word out and starts the whole interview process. Mike, being an ‘attention to detail’ kind of guy is very clear about what his requirements are and as part of his interview process he is clear about what qualifications the applicant must have, that references will be checked and what documents the successful applicant must be able to provide in terms of legislation and compliance. Mike does not want to have any problems with the Department of Labour down the line. Part of Mike’s interview questionnaire is the question “Do you have criminal record”? Sarah smiled when she answered this question with a very resounding No.

After several gruelling weeks of interviewing, Mike finally settles on a young Nigerian woman by the name of Sarah. Sarah is well groomed, erudite, has all the correct qualifications and she assures Mike that she is able to work here in South Africa as she has the required documentation.

Sarah is employed on the proviso that her references check out and that she provides the relevant documentation. Sarah starts work the following day and Mike is pleased with his choice of candidate as Sarah fits right in from the very beginning.

Mike starts checking references and cannot get through to any of the numbers provided. Mike understands that the references are for Companies and people who live in Nigeria and with the time difference there could be some difficulty, but he is mindful of the fact that these references have to be checked and he persists. In the meantime, every time he asks Sarah for her documentation there is some sort of reason or another as to why she has not brought them along. Mike keeps reminding her that he needs the documents and Sarah keeps promising to bring the documents to work. Somehow she never does.

Mike continues to struggle to get through to the numbers that Sarah has provided and eventually Mike decides to contact the Nigerian Embassy to see if they can provide him with the correct telephone numbers for the Company that he is trying to contact. The Embassy gives him the correct number and he eventually (some 5 weeks after Sarah has started work) gets through to the Company that she worked for in Nigeria. Mikes speaks to the Company CEO and he is absolutely horrified at what he discovers. Sarah was caught selling ‘blood diamonds’ and had served time for this crime.

Mike calls Sarah in and confronts her with his findings. Sarah breaks down and admits that this information is correct but that when Mike asked her if she had a criminal record, she assumed that he meant in South Africa. The reason that she did not give him her documentation is because this information appears on one of the documents and of course she did not want him to see it. Mike is understandably furious and a disciplinary hearing is held and Sarah is dismissed for non-disclosure.

Of course Sarah goes to the CCMA and lays a claim of ‘unfair’ dismissal because according to her she had been asked this question purely because she was Nigerian.

The Chairman ruled in favour of Mike because the question that he asked in terms of the criminal record was part of his interview process and that all the applicants had been asked the same question – Sarah had not been singled out at all. Furthermore, in view of highly sensitive issue around blood diamonds and the fact that Mike’s business involved the use of diamonds, employing someone who had trafficked in blood diamonds, could have a negative impact on his business.

In this instance, following the correct procedures in terms of the interview process as well as disciplinary and dismissal procedures is what won the day for Mike. As usual, if you are not 100% sure of what you should be doing or where you stand legally, get yourself some help.

Next time we will hear about a not so happy ending for an employer.