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

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.