a:Michael
Ellison
1
IN
THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
SWAZIPHARM
WHOLESALERS (PTY) LTD APPELLANT
vs
MICHAEL
KENNETH ELLISON RESPONDENT
CASE
NO. 17 95
Coram
S.W.
SAPIRF, J
P
J.M.
MATSEBULA,
J
A
SB.
MAPHALALA, J
A
For
Appellant. Mr.
Jele
For
Respondent Mr.
PR. Dunseith
JUDGMENT
The
appellant, a wholesale dealer in pharmaceuticals employed the
respondent as its financial manager. The appointment took place on
the 1st October 1994 and a letter briefly set forth the terms upon
which such appointment was made In fact for reasons irrelevant to
this judgment he commenced his duties only on the 31st October 1 994
The
respondent remained in the employment with the appellant until the
16th November, 1994 when the appellant served a Setter suspending the
respondent from employment. On the 21st November 1994 the appellant
terminated the respondent's employment on the following terms-
"It
is with regret that I must terminate your employment with immediate
effect. You failed to bring to our attention the circumstances
surrounding your dismissal from the S.A. Trade Mission during your
interview for the position of Financial
a:Mchael
Ellison
2
Manager
with Swazipharm. You also did not disclose this information in your
Curriculum Vitae. You will appreciate that the position of Financial
Manager requires someone with absolute integrity and trustworthiness.
Please accept your salary for the month of November in lieu of your
services for the period you have been here."
The
letter was signed by one G.W. Fisk, Managing Director of the
appellant.
The
respondent complained that the dismissal was unfair in that:-
The
applicant in his Curriculum Vitae forwarded to the respondent
disclosed the information pertaining to his employment at the South
African Trade Mission.
Furthermore
the applicant disclosed on the cover sheet of his Curriculum Vitae
his willingness to discuss in detail reasons for leaving his or
vious
employment
he
applicant's failure to disclose the reasons for his dismissal at the
South African
Trade Mission does not amount to dishonesty because he was never
asked to disclose the reasons during the interview for the job
notwithstanding his willingness to discuss his previous employment
with the South African Trade Mission.
The
applicant reported the dispute to the Labour Office and the
Commissioner of Labour duly issued a certificate of an unresolved
dispute. The matter went to the Industrial Court where in due course
judgment was granted in favour of the respondent and an award of 8
months salary by way of compensation in the sum of E24 000 was made.
The
only point of law before this court as far as the appeal was
concerned was whether or not there is an obligation of an applicant
for a position to disclose that he had been dismissed from previous
employment on the grounds of dishonest conduct.
In
considering this point it must be home in mind that the appellant
interviewed the respondent before engaging him and had every
opportunity of enquiring into the circumstances surrounding his
dismissal from the South African Trade Mission. Despite tins
Respondent was not asked any questions in this connection nor was he
asked whether he had ever been convicted in a Court of Law for a
crime involving dishonesty. We are of the view that no obligation
exists on an applicant for a position to disclose past misconduct if
he is not specifically required to do so. It is true that any
employer requiring to fill an executive position, would be influenced
in his choice of a person by knowledge that the prospective employee
had been dismissed in the past from his employment on the grounds of
dishonesty upon which a conviction followed. It would be apparent to
any prospective employee that this is so. Nevertheless it does not
follow that the prospective employee has a duty to make full
disclosure of all or any of his past misdeeds when applying for a
position. The difficulty of defining the limits of such a duty,
militate against its acceptance as a contractual obligation.
Our
view is that the law as stated in HOFFMAN v MONK'S WINERIES LIMITED
a:Michael
Eilison
3
1948
(2) SA 163 ©
is applicable in Swaziland. The head note which accurately reflects
the decision reads as follows
"A
contract of service is not a contract uberrimae fidei and the
non-disclosure of material facts is not a ground for its termination
Where
the plaintiff, who had been engaged by the defendant as a sales
manager, had failed to disclose (a) that he was an unrehabilitated
insolvent and (b) that he had been comic-led under the Insolvency
Act, 32 of 1916. and had been sentenced to a term of imprisonment.
Held,
that there was no duty upon the plaintiff to have disclosed these
facts to the defendant."
If
an
employer considers that the past misconduct of a prospective employee
is material in considering the advisability of employing that person
then such employer should, before engaging the employee, ascertain
the position by appropriate questioning. There would be nothing
improper about pulling such questions to the prospective employee and
if the prospective employee did not answer the questions honestly
then if an appointment took place on the basis of such misleading
answers the employer would be entitled to rescind the contract.
Although
we were referred to criticisms of the Hoffman judgment these
criticism do not persuade us that the reasoning in the Hoffman
judgment is wrong. In particular we agree that a contract of
employment is not a contract uberrimae fidei in the sense that it
requires a prospective employee to make a complete disclosure of his
past and where failure to do so would entitle the employer to rescind
any contract entered into. For these reasons the appeal must fail.
The
respondent has filed a cross appeal. The cross appeal raises the
question of whether the award made by the Court aquo was adequate. It
is argued on behalf of the respondent that the justice of the
Industrial Court erred in law in failing to take into account in his
calculation of the amount payable to the respondent in terms of
Section 15(4) of the Industrial Relations Act. amounts categorised as
allowances over and above basic salary' which were payable to
respondent in terms of his contract.
That
Section provides that where the services of an employee have been
unlawfully or unfairly terminated an award of compensation in terms
of Sub-Section 2(d) of not less than 6 months remuneration and not
more than 24 months remuneration shall be awarded by the Court as it
considers just and equitable in all the circumstances having regard
to the loss sustained by the employee in consequence of the
termination in so far as that loss is attributable to action taken by
the employer and the extent if any to which the employee caused or
contributed to the termination.
Without
prejudice to the generality of the foregoing the Court is to have
regard to the actual financial loss to the employee, his age, his
prospects of obtaining of the equivalent employment and the
circumstances of the termination.
It
is further provided that where the Court finds that the dismissal is
unfair by reason of the procedural defect the minimum compensation
payable might be varied as the Court deems just and equitable.
This
is one of the provisions of the Act which has been severely
criticized The justification for a minimum or maximum amount is
difficult to justify. The provisions of the section are in this
respect penal for even where the employee who has been unlawfully or
unfairly dismissed sutlers no actual loss at all by reason of his
taking up immediate employment on his dismissal a minimum amount has
to be paid to him.
The
Court did enquire into the financial loss to the respondent following
on his unfair dismissal. In so doing the court asked of the
respondent whether his net monthly package upon which
a
Michael Ellison
4
the
compensation to be paid should be calculated was E5 200 per month. To
this the respondent answered yes.
On
appeal it was argued that the amount should be greater because
certain allowances for motor car expenses and housing expenses were
not included in the amount of Respondent's remuneration..
It
is difficult to see why the Court should be said to have erred when
the Respondent himself fixed the amount of his remuneration. The
amount awarded was not less than the minimum provided for.
We
have nevertheless considered the arguments advanced to us by the
respondent's counsel and have come to the conclusion that making the
calculation in terms of Section 15(4) the motor car allowance was not
to be included as it was not remuneration for work done but simply a
repayment for the expense incurred by the respondent for the use of
his own car. The housing allowance may be on a different footing
because that us clearly part of the remuneration. We have come to the
conclusion however that although there is this misdirection by the
Court
quo
and we may be at large to interfere with the amount of the award we
are not , inclined so to do.
This
for two reasons, firstly the amount to be taken into account in
making the calculation was agreed to by the respondent himself in
evidence. Furthermore the amount awarded is in excess of the minimum
and in our view is a fair compensation to the respondent having
regard to all the circumstances revealed by the evidence. In the
result both the appeal and cross appeal are dismissed with costs.
S.
W.
SAPIRE, J
P
I
agree
I
agree
J.
M.
MATSEBULA.
J
A
S.B.
MAPHALALA. J
A
