I have an upcoming interview with a very reputable Company. However when I was 19 years old, which was 25 years ago, I was convicted and served time in prison for fraud in another country. Do I have a duty to give this information to my prospective employer? How would disclosure, impact on their perspective/opinion of me, though I had no incident of recurring action?
The Legal/ IR Principle – No General Duty of Disclosure
The operative legal and IR Principle, as affirmed by Civil Courts and Tribunals in common law jurisdictions, and recognised by our own Industrial Court is as follows:
Contracts of employment are not “Uberrimae Fidei” (requiring utmost good faith). There is therefore no obligation for a prospective employee to disclose information to his/her disadvantage at any pre-employment stage, unless specifically asked.
Leading Authorities in the Commonwealth jurisdiction are the two New Zealand cases of Fletcher v Krill 1837 and Healey v Société Anonyme Francaise Rubastic1917.
In both cases the Court held that a prospective employee was under no duty to divulge criminal matters in his/her past life, including criminal convictions. On the other hand although the applicant is not obliged to volunteer negative information about his/her background, he/she may not lie if asked a direct question by a prospective employer. A deliberate misstatement or misrepresentation about the applicant’s background of the employment relationship will go to the root of the contract and be fatal to the mutual relationship of trust and good faith.
It is clear therefore that a deliberate material non-disclosure/misrepresentation will have a serious impact on the employment relationship, to the extent that the employer, after learning of the prior conduct may be justified in deeming the employee to be untrustworthy. On this basis, the detrimental impact on the employment relationship must be linked directly to the nature of the Company’s business and its operational requirements. Such causal linkages, having been established with compelling evidence may constitute a justifiable reason to terminate the services of the employee.
The grounds for any such decision would however be twofold:
- Firstly the employee’s prior conduct bears significant reputational risk to the employer’s operational requirements.
- Secondly, his or her misrepresentation or deliberate material non-disclosure/ misrepresentation has destroyed the employment relationship.
An employer shall therefore be required to critically assess the impact of the alleged deliberate material non-disclosure/misrepresentation on the employment relationship prior to making a decision to terminate the contract on these grounds. Any such justification must however be supported by compelling evidence of the impact. It will be insufficient to simply state that the adverse impact is existent.