Most employers will be familiar with or at least aware of dishonesty and it’s more typical appearances in the workplace, among others, theft, fraud, time abuses and bogus medical certificates, falsifying qualifications, or an employee’s lies to cover up errors or incomplete work. What happens if an employee were to mislead an employer during a company investigation or misstate facts during proceedings against the employer? How does this impact upon the employment relationship?
Of course, it is not difficult to conceive of a situation whereby an employee might exaggerate facts or their legal position to win or avoid losing a case against their employer. In a similar vein, there are those situations that arise when an employee refuses point blank to answer a question relating to an employer’s investigation, or qualifies their refusal on some or other confidentiality theory, a “right to remain silent” or misconception of how those proceedings should play out legally. Dishonesty however, during legal proceedings against your employer or lying during an investigation, could get you into hot water.
In a recent German decision, the Regional Labor Court of Cologne agreed that the behaviour of an employee in litigation against an employer, in this instance a dismissal protection process, could justify termination of the employment relationship. While employees could be expected to use strong expressions or overstate the facts to support their legal position, this is only applied within the limits of the duty of truth.
Indeed, what began as a case relating to an employee’s challenge to an employer’s termination of his employment for unauthorized leave culminated in a ruling that the employment relationship was to be terminated on account of the false presentation of facts during those legal proceedings. The deliberate presentation of untrue facts either because an employee fears losing the case or some other reason could nevertheless destroy the employer’s trust in the honesty of the employee irreparably.
In an Australian case, an employee was directed by his supervisor to attend at a doctor’s appointment to establish his fitness following a work-related injury. The employee’s failure to do so was considered a failure to comply with a reasonable instruction and he was dismissed pursuant to the institution of disciplinary proceedings. The Commissioner hearing the matter at first instance regarded the employee’s representations concerning the doctor’s appointment as misleading, and found the employee’s refusal to be unreasonable and a valid reason for dismissal. A Full Bench on appeal declined the employee’s argument of privilege against self-incrimination, in circumstances where the employee had declined to answer questions unless they were put in writing.
The South African context
These decisions are likely to find application in a South African context, the parallel to be drawn being that employees are required to act honestly and transparently, whether in preliminary investigations or subsequent legal proceedings against an employer. Indeed, there is a considerable body of case law in South Africa that recognises it is an implied term of the contract of employment that an employee will act with good faith towards the employer, and that the failure to do so will impact negatively on the employment relationship.
In University of KwaZulu-Natal v Pillay and Others the Labour Appeal Court endorsed a Commissioner’s finding that the lies an employee had told during an internal tribunal destroyed the trust relationship.
In SAMWU obo Makibinyane and Others v SA Local Government Bargaining Council and Others the Labour Court, certain employees were requested to provide information, in the form of a questionnaire sent to them, relating to the investigation into financial misconduct. The employees refused to comply despite repeated instructions from the Municipal Manager. While not a dishonesty case per se, the Labour Court in agreeing with the previous forum’s finding of gross insubordination, recognised that the starting point was that an employee has a fiduciary duty towards an employer and is expected to always act in the best interest of the employer.
While on this construction, the failure to co-operate with an employer’s investigation was closer to insubordination, as opposed to dishonesty, the fundamental requirement that employees act in the best interest of their employers, and open and honestly, is certainly offended.
Employees would do well to ensure honest dealings, whether in pursuit of a case against their employers or during internal company proceedings. To mitigate risk associated with these proceedings, employers should at all times adhere to procedural fairness, issue reasonable and lawful instructions, and provide ample warning that failures to comply will attract disciplinary action. Employees should be afforded the opportunity to make reasonable, honest and transparent disclosures.
We trust that you found this article informative, please email email@example.com for assistance with disciplinary or performance matters.
Rowan Bauer is an attorney specialising in employment law at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at firstname.lastname@example.org directly for advice applicable to your specific matter.
 (3 Sa 599/19, 09/21/2020).
 Grant v BHP Coal Pty Ltd  FCAFC 42.
 (DA09/2015)  ZALAC 48;  2 BLLR 149 (LAC); (2019) 40 ILJ 158 (LAC) (25 September 2018).
 (JR1043/18)  ZALCJHB 15 (8 February 2021).