Article 1/2024

The workplace has become an ever-increasing dishonest place. It is apparent that this dishonesty already creeps in when people apply for jobs and present their curriculum vitae. In analysing curricula vitae accompanying applications for jobs, it has become apparent that three types of misrepresentation currently exist:

  • misrepresentation as to the actual qualification (i e degree, diploma, etc) obtained
  • misrepresentation as to a part qualification obtained
  • misrepresentation as to membership of professional bodies

What are some of the approaches that an employer can adopt to deal with these ever-increasing challenges?

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Dismissal on the basis of dishonesty

Recently, in Lesedi Local Municipality v CCMA and Others (LC) JR1546/20, the employee:

  • misrepresented that he had a BCom accounting degree, whereas he only obtained a BCom degree
  • he, furthermore, misrepresented that he had an honours degree in GRAP (Generally Recognised Accounting Practice), whereas he only attended an executive short course with an NQF8 level
  • he misrepresented that he was a member of the Institute of Internal Auditors of South Africa as well as the Institute of Administration and Commerce

The labour court had no problem indicating that his dismissal on the basis of such dishonesty is substantively fair.

Hereunder, is a selection of cases where it was also found, by both the labour and labour appeal courts, that misrepresentation of qualifications justifies a dismissal for dishonesty:

  • SA Post Office v CCMA (2011) 32 ILJ 2442 (LAC) – misrepresentation entailing that the person had an appropriate driver’s licence
  • Department of Home Affairs v Ndlovu (2014) 35 ILJ 3340 (LAC) – misrepresentation entailing the holding of a degree in marketing
  • Hoch v Mustek Electronics (2000) 21 ILJ 365 (LC) – misrepresentation entailing the holding of various diplomas in accounting and teaching
  • Rainbow Farms v Dorasamy (2014) 35 ILJ 3462 (LC) – the employee misrepresented that she had a BTech: Business Administration qualification, where indeed she had a BTech: Quality Management qualification

See, further, G4S Secure Solutions v Ruggiero (2017) 38 ILJ 881 (LAC)

Institution of a delictual claim based upon the damages suffered by the employer

In Passenger Rail Agency SA (‘PRASA’) v Daniel Mthimkhulu (Case No 42056/2015), the employer went one step further than merely dismissing the employee, but instituted a claim on the basis of a delict in the high court.  The high court, taking into account the misrepresentation made by the employee as to his qualifications, etc, had no difficulty indicating that in casu the employer satisfied a claim for the elements of a delict, namely:

  • here was conduct on the part of the employee
  • such conduct was wrongful
  • the employee either intentionally or negligently made such misrepresentation
  • a causal link was established between the conduct of the employee and the loss suffered by the employer, employing the employee on the basis of such misrepresentation
  • there was damage (harm) suffered by the employer

The high court, therefore, awarded PRASA damages in the amount of R5.7m, constituting the remuneration the employee received from PRASA as a result of his fraudulent misrepresentation.

National Qualifications Framework Amendment Act 12 of 2019

In terms of s32B(3), a person is guilty of an offence if such person falsely or fraudulently claims to be holding a qualification or a part qualification registered on the NQF (National Qualifications Framework), or awarded by an educational institution, skills development provider, QC (Quality Council) or obtained from a lawfully recognised foreign institution.

In terms of s32B(6), if a person is convicted of an offence in terms of this Act, the person is liable to a fine or to imprisonment for a period not exceeding five years or to both such fine or imprisonment – regretfully, currently, there is no register available of people who have been found guilty in terms of this Act.

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).