Is the open-ended nature of the common law duty to disclose by an applicant or employee fair and just?

Abstract

The common law duty to disclose past transgressions could lead to a miscarriage of justice in the form of double jeopardy for the affected individual, resulting in the employee or applicant being without employment for a lifetime. The focus of this paper is not on what was supposed to be disclosed; rather, it is to interrogate the application of the open-ended nature of this responsibility in the context of an employee or applicant seeking new employment. It is argued that the lack of development of this common law duty is not aligned with the constitutional mandate of reconciliation and rehabilitation for past transgressions, which is dominant in the criminal justice system and consumer law, among others. There is no justification for labour law to be an exception. The vacuum in labour law needs to be addressed in order to assist in realising this constitutional mandate and in ensuring that employees and applicants are not held perpetually responsible for past wrongs, with no avenue for reform and re-integration into the workplace. It could be argued that this is in violation of section 22, which stipulates the right to choose trade and profession as protected by the Constitution of South Africa, 1996. Furthermore, the open-ended nature of this duty is also a contributing factor to the high unemployment rate in South Africa and must be addressed urgently.