Misrepresentation of qualifications and substantive dismissal

December 1st, 2017
x
Bookmark

By Yashin Bridgemohan

LTE Consulting (Pty) Ltd v CCMA and Others (LC) (unreported case no JR1289/14, 8-8-2017) (Myburgh AJ)

In SA Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2442 (LAC) at para 34 Waglay DJP held:

‘To place an employee who was guilty of dishonesty back in her position where honesty and integrity are paramount to the execution of duties, is to my mind grossly unreasonable, but more importantly, it cannot be right and proper to reinstate or re-employ a person in a position that was secured by the making of false statements.’

In the Department of Home Affairs and Another v Ndlovu and Others (2014) 35 ILJ 3340 (LAC) at para 16 Dlodlo AJA held:

‘The fact that the misrepresentation in the CV might very well not have induced the first respondent’s appointment to the post most certainly does not detract from the fact of the first respondent’s initial dishonesty. The dishonesty as contained in the CV is ultimately what underpins the substantive fairness of the first respondent’s dismissal. Why did the first respondent put in his CV that which is untrue? He knew how to describe the MBA degree which was then unfinished. He could have described the bachelor of technology marketing degree similarly if he found it necessary to mention it at all in his CV.’

In the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881 (LAC) at para 30 Savage AJA held:

‘The false misrepresentation made by the third respondent was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees. It induced employment and when discovered was met with an absence of remorse on the part of the third respondent. The fact that a lengthy period had elapsed since the misrepresentation, during which time the third respondent had rendered long service without disciplinary infraction, while a relevant consideration, does not compel a different result. This is so in that the fact that dishonesty has been concealed for an extended period does not in itself negate the seriousness of the misconduct or justify its different treatment. To find differently would send the wrong message.’

Facts

From 1 December 2009, the employee was employed by the applicant as its financial manager. At the time of commencing employment, the employee was turning 82 years old, which past the applicant’s retirement age for employees of 65 years. The employee was subsequently offered the position of assistant company secretary on a fixed-term contract running from 1 August 2013 to 31 January 2014, but refused the offer, as well as refused a further offer of a permanent position as assistant company secretary.

While considering the fixed-term contract the applicant’s company secretary looked through the employee’s CV on file, and noticed that particular certificates were outstanding. These included the employee’s BCom degree, chartered accountant (CA) qualification and MBA degree. When the company secretary raised the issues with the Human Resources department, he was told that the certificates were requested but the employee failed to provide same.

The company secretary then commenced an investigation, and discovered that the employee was not a chartered accountant and that he did not have an MBA, further assuming that he did not possess a BCom degree either. Disciplinary charges against the employee were then instituted on completion of the investigation. On 13 December 2013, the employee was charged with gross dishonesty for incorrectly providing in his CV that he was a qualified CA.

After the disciplinary inquiry the employee was found guilty and the employee was dismissed. A dispute of unfair dismissal was then referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) and at arbitration the commissioner found that the employee’s dismissal was substantively unfair and an award of six months compensation was made.

The commissioner found that, insofar as the employee was guilty of any misconduct, dismissal was not warranted as –

  • his dismissal was a sham aimed to ensure his retirement;
  • the misrepresentations regarding his qualifications was not material in obtaining the financial manager post;
  • the employee had equivalent qualifications; and
  • an evaluation of factors in mitigation/aggravation evidenced that the sanction of dismissal was inappropriate.

The applicant then made application to the Labour Court (LC) to have the award reviewed and set aside in terms of s 145 of the Labour Relations Act 66 of 1995 (LRA).

Issue

The main issue before the LC was whether the commissioner’s finding that the employee was not guilty of dishonestly misrepresenting his qualification’s in his CV was reasonable.

Judgment

The court noted that the findings made by the commissioner were unreasonable. The commissioner’s main finding that the dismissal was aimed at effectively ensuring the employee’s retirement was unreasonable as it could not be reconciled with the company secretaries unchallenged explanation of how he found out the issues with the employee’s CV.

The court held the finding of a sham dismissal was incorrect as objectively, the employee’s misconduct was extremely critical and worthy of dismissal. The finding that the misrepresentation regarding the CA qualification was immaterial possessed no justifiable basis in terms of the evidence.

The court held further the finding that the employee had equivalent qualifications, was not reasonable as it omitted to take into account the issue of misconduct, and further did not extend to the commissioner’s findings regarding the employee’s claim that he was a CA. As such the commissioner’s unarticulated examination of factors in mitigation which found in the employee’s favour in terms of sanction was unreasonable when considering Labour Appeal Court cases discussed above.

Conclusion

This judgment is important as it highlights that gross misrepresentation of qualifications by an employee in their CV is serious enough to warrant dismissal. Dismissals in these circumstances are substantively fair. Where a commissioner finds differently at arbitration, an aggrieved employer may make application to the LC in terms of s 145 of the LRA to have the award reviewed and set aside.

Yashin Bridgemohan LLB (UKZN) PG DIP Labour Law (NWU) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.

This article was first published in De Rebus in 2017 (Dec) DR 53.

Loading...