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Article 12/2023

On what basis can an employer institute civil action against an employee for misrepresenting his qualifications and falsely claiming that he received a better job offer that induced the employer to increase such employee’s salary to match the offer?

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  • Passenger Rail Agency SA v Daniel Mthimkhulu case number 42056/2015 deals with the above scenario, where the misrepresentation of qualifications induced the employer to employ the employee and where the false claims of an alternative offer induced the employer to match such fake offer
  • The court in casu was satisfied that all the elements of a delictual claim had been established, namely:
    • the conduct on the part of the employee
    • such conduct was wrongful
    • the employee intentionally misrepresented the scenario
    • the employer suffered damage
    • a causal link exists between the wrongful conduct of the employee and the damage suffered by the employer – consequently, the court awarded damages to the employer in the amount of R5.7m, constituting the remuneration the employee received from the employer as a result of his fraudulent misrepresentations
  • However, in terms of s32B(3) of the National Qualifications Framework Amendment Act 12 of 2019, a person is guilty of an offence if such person 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 – entailing that, apart from the aforesaid civil claim, the employee may also face a criminal charge and may be subject to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?