The following article by Ivan Israelstam should assist you with your enquiry.
Employees Committing Misrepresentation
The need for employers to be able to trust their employees is crucial. For example, employers need to know that their employees and prospective employees are honest as regards the job qualifications they put forward, the work that they do and the clients that they serve. The employer needs to be sure that its employees do not misuse the knowledge they have of the workings of their organisation for their own personal gain.
In South Africa, where there is heavy competition for jobs it is not unusual for job applicants to deceive prospective employers in order to improve their chances of being offered a job. This type of deception includes:
• Claiming qualifications that do not exist
• Falsification of CVs and academic certificates
• Provision of false reference letters
• Exaggeration of skills and experience
• Lying about reasons for termination of previous jobs
• Denying that the employee is pregnant
• Lying about the employee’s age
• Provision of incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing referencesWithholding of information such as criminal convictions and disciplinary action.
The key questions are:
• “What information does the law require the job applicant to provide?” and
• “What legal recourse is there for the employer who subsequently finds that it has employed someone who deceived it prior to employment?”
It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant. While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstances. For example, section 6 of the Employment Equity Act (EEA) prohibits discrimination against job applicants on a number of arbitrary grounds including race, gender, pregnancy, age and numerous others. Logically therefore, it would normally be unacceptable to fire an employee who had withheld information related to these prohibited arbitrary criteria.
For example, it would, in most cases, be wrong to fire an employee for having failed to inform the employer, during the job application stage, that she was pregnant. Although the employee may have proved to have been dishonest about this at her interview, job applicants are not required to divulge such information. However, where the deception of the employee relates to the employee’s ability to do the job and thereby satisfy the employer’s operational requirements the employer is on firmer ground should it wish to bring disciplinary action against the employee.
For example, in the case of Evans vs Protech (2002 7 BALR 704) the employee had, prior to employment, informed the employer that she had previously worked as a qualified hairdresser and that a certain person was to be contacted for a reference. The employee was then employed. Thereafter the employer discovered that the employee had never worked with the alleged referee and that the employee had not been a qualified hairdresser. The employer therefore dismissed the employee. The CCMA found that the dismissal was procedurally unfair because no disciplinary hearing was held, but substantively fair because the employee had not been justified in lying about her qualifications during the job application stage.
However, in the case of NUMSA obo Engelbrecht vs Delta Motor Corporation (1998 5 BALR 573) the CCMA found the dismissal of Engelbrecht to be unfair despite the fact that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.
It is not only job applications that can result in misrepresentation. In the case of PSA obo Mojake vs SARS (2005, 12 BALR 1308) the employee worked as an auditor for SARS. She was dismissed for having written to SARS a letter purporting to come from a consumer organisation. The letter requested SARS to cancel garnishee orders issued against Mojake. The CCMA agreed that such misrepresentation was deserving of dismissal but nevertheless ordered the employer to pay the employee compensation because it had breached its own disciplinary procedure in the process if dismissing Mojake.
The decisions in these cases mean that employers must:
• check all information that job applicants give them
• put in place systems for preventing employees from misusing their knowledge of the organisation for personal gain
• give employees disciplinary hearings that are procedurally and substantively fair before acting against them for misrepresentation
• Employers must, before holding such hearings, consult with a reputable labour law expert as to whether the deceptive behaviour in each individual case merits discipline and dismissal.
lvan lsraelstam is the chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: firstname.lastname@example.org