Rainbow Farms (Pty) Ltd v Dorasamy and Others (unreported case no D 303-11, 25-2-2014 (Cele J).
By Moksha Naidoo
The employee was dismissed for what is commonly referred to as CV fraud. The first respondent arbitrator found her dismissal substantively unfair and as a result thereof the employee was awarded reinstatement without back pay.
On review the applicant employer sought to have the arbitrator’s decision set aside and substituted with a finding that the employee’s dismissal was substantively fair.
The employee took up a permanent position with the employer in 1999 as a vaccine technologist. In 2006 the employee held the position of virologist and was promoted to quality manager in 2007.
In response to an internal advertisement, the employee applied for the post of vaccine manager and submitted her CV wherein she listed her qualifications as –
Business Administration – 2002; and
Subsequent to submitting her CV, but before being interviewed, it came to the attention of her manager that the employee had not obtained her Bachelors of Technology: Quality Management degree in that one course for the degree remained outstanding. Her manager advised her to change her CV to reflect this, which in turn prompted the employee to insert the word ‘current’ after listing the aforementioned degree.
Having been interviewed by her manager and two others, the employee was asked to produce copies of her qualifications. At that point it became apparent that the employee had not yet completed another degree, that being her Business Administrative degree and was charged and dismissed for dishonesty, more particularly for the reason that she was aware that she had to expressly qualify in her CV which qualifications remained incomplete.
Arbitration
Having heard the evidence of both parties the arbitrator held the following:
The employer would have sooner or later ascertained the employee’s error – it funded the employee’s studies and gave the latter time off to prepare and write her exams. As such, it could be expected that the employer had a file with all the relevant documentation pertaining to the employee which, among others, would have included the employee’s qualifications. Therefore, if the employer wanted to verify the employee’s qualifications it should have accessed the employee’s personal file. Had it done so, it could have informed the employee of her error and rectified it.
In her explanation the employee stated that when listing the qualification of Business Administrative, the corresponding year she inserted in her CV was intended to reflect the year she commenced her studies for that qualification. In light of the fact that the employee was aware she had not completed her studies for that course, the arbitrator accepted the employee’s explanation.
In his conclusion the arbitrator held that the employee was not dishonest and at best could be described as a person who did not know how to compile a CV. In support of this, the arbitrator accepted that the qualification under review was not relevant to the post the employee applied for and further that the employee’s non-disclosure of the qualification in question would not have altered the fact that the interviewing panel found her to be the preferred candidate for the post.
With regard to remedy the arbitrator found that it was fitting to reinstate the employee into the position of vaccine manager or a position similar or to her previous position of quality manager.
Review
In adopting the appropriate test on review the court, per Cele J, set aside the award on the following grounds:
First the court found it unreasonable for anyone to accept the employee’s version with regard to her interpretation of the corresponding year inserted next to the qualification Business Administrative. In support of this finding the court noted that when listing her first two qualifications, the corresponding year the employee inserted was the year she obtained such qualifications; this, according to the court, strongly inferred that the employee appreciated the conventional understanding of what a corresponding year means, listed next to a qualification, but yet seems to relinquish this understanding, without explanation, when it came to the qualification under review.
With regard to the arbitrator’s first finding, the court said the following:
‘The commissioner’s findings that the applicant would have sooner or later found out about the third respondent’s misrepresentation or ought to have found out about it and brought it to her attention by looking at her personnel file was completely unreasonable and based upon an incorrect premise. There was no need to tell the third respondent what she very well knew. She was the creator of her CV and the commissioner benefitted her with ignorance that she was never entitled to in the first place.
It is not a defence to an allegation of fraud that the person to whom the representation was being made, could have by the exercise of reasonable care, discovered the truth of the misrepresentation and ought never to have been duped by it.’
The court further held that on a proper assessment of the employee’s conduct one is left with the inescapable conclusion that the employee was guilty of a dishonest act, the effect of which severed the trust relationship between employer and employee and thus justifying dismissal.
The award was set aside and replaced with a finding that the employee’s dismissal was substantively fair. No order as to costs was made.
Note: Unreported cases at date of publication may have subsequently been reported.
Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.
This article was first published in De Rebus in 2014 (May) DR 60.
