In the wake of recent news headlines, it seems not only public servants have falsified their qualifications to obtain employment, but this has also become fashionable among other job seekers. What recourse does the employer have?
The Law
South African legislation, through the introduction of the National Qualifications Framework Amendment Act 12 of 2019, has made it a criminal offence when people claim qualifications they do not have.
The law broadly states that it is a criminal offence if anyone “falsely or fraudulently claims to be holding a qualification or part-qualification registered on the NQF or awarded by an education institution, skills development provider, QC or obtained from a lawfully recognised foreign institution.”
Case Study – Umgeni Water v Naidoo
In the recent civil claim of Umgeni Water v Naidoo and Another (11489/2017P) [2022] ZAKZPHC 80; [2023] 1 All SA 857 (KZP) (15 December 2022), it was found that an employee who had a fraudulent chemical engineering degree, had to pay back to his employer the R2.2 million he earned over the eight years he worked there.
Caselaw suggests the provided false information does not necessarily need to relate to a material requirement of the position in question.
Case Study – SA Post Office Ltd v Commission for Conciliation
In SA Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2442 (LAC), the Labour Appeal Court upheld the dismissal of an employee who, in her application for employment, stated that she had a driver’s license. It was later discovered she only had a learner’s license.
Judge Waglay DJP (as he was then), in delivering his judgement, stated the following: “The fact that [the employee] performed well at the interview and thus secured the post is irrelevant. It is also of no consequence as to how the discovery was made about her not having a driver’s licence.”
In this case, the employee required a driver’s licence to perform functions related to her position and was dismissed because her dishonesty had allowed her to be employed in circumstances where the company would never have employed her had they known the actual state of affairs.
Case Study – Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC)
Should one discover even minor CV fraud, one would do well to be aware of the case of Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC). In this case, seven years after the employee’s start date, it was discovered that the employee had been untruthful regarding her qualifications. Despite these qualifications not being related to the duties the employee had been appointed to perform, the court found that such dishonesty was sufficient to fairly dismiss the employee.
Judge Basson stated the following in this regard in her judgement: “…even though [the employee] was an employee of seven years standing and was honest and trustworthy in her work and even though [the employee’s] qualifications were irrelevant to her position as a debtors’ clerk at the time of her dismissal, [the company] was, in my view, justified to consider her dishonesty as severe enough to have irreparably damaged the unique trust relationship enjoyed by her. It is for the employer to set standards of conduct for its employees. As long as these standards are reasonable, the court will not interfere (see the requirements of item 7 of Schedule 8 to the Act).”
Honesty and Trust in the Workplace
It becomes clear that dishonesty of any kind should raise the question as to whether or not the trust relationship between the parties can survive its discovery. The two cases above illustrate, in considering whether or not to dismiss, the content of the lie is not more important than the fact of the lie.
This does not mean dishonesty provides grounds for immediate or arbitrary dismissal. The Labour Relations Act, together with the common law, still prescribes specific procedures to be followed. Failure to do so may render an otherwise fair dismissal procedurally unfair.
Should your company require assistance with verification of qualification and the process to follow if found fraudulent, contact Invictus Group on 0861 737 263 to ensure that the process complies with all the legalities.
