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?

_____________________________________

  • 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
March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.