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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
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?