By Phumzile Penelope Ziqubu
Many job requirements require a specific qualification to ensure that candidates meet the profession’s or industry standards. The requirements are always set out in the job advertisement and candidates must meet these requirements to be shortlisted and later appointed. The requirements usually relate to work experience, skills, a specific degree or professional designations, specific knowledge, and physical abilities. This list is not exhaustive.
This brings us to the big question: ‘What action may an employer take if an employee has misrepresented their qualifications’? (Ivan Israelstam ‘What action may an employer take if an employee has misrepresented their qualifications or experience?’ (www.skillsportal.co.za, accessed 3-4-2023)). This question was answered in the case of Umgeni Water.
Background facts
Sheldon Naidoo (employee) applied for a graduate programme offered by Umgeni Water. One of the requirements to be admitted to the programme was that the candidate must possess a degree in Bachelor of Science in Engineering (chemical engineering).
In his application form the employee attached a degree certificate in chemical engineering from the University of KwaZulu-Natal (UKZN). This degree certificate resulted in him being admitted to the graduate programme.
The employee remained in the employ of Umgeni Water for several years. A new opportunity presented itself at Umgeni Water, a position of Process Technician was advertised. The employee applied and had to attach his qualification certificate to the application form.
This time Umgeni Water conducted a qualification check. The employee’s qualification was checked and sent to UKZN for verification.
UKZN stated it had no record of the said degree being conferred on the employee. Umgeni Water approached the employee seeking answers, which proved to be a fruitless exercise.
Soon after the employee resigned, which was rejected by Umgeni Water as there was disciplinary proceeding underway, the employee tendered a second resignation letter this time resigning with immediate effect due to ill health.
Unhappy with the outcome of the verification, Umgeni Water sued the employee for all money paid to him during his employment. The basis being he submitted a fraudulent qualification certificate, which meant from the onset there was no employment contract in existence.
The matter escalated to the KwaZulu-Natal Division of the High Court in Pietermaritzburg and relief was sought in terms of s 37D(1)(b) of the Pension Funds Act 24 of 1956 (the Act).
Graduated from UKZN
The court considered the facts of the matter and went on to state the employee was untruthful. The degree certificate produced by the employee was a forgery. The employee falsely represented the true nature of his qualifications with an intention of securing employment from Umgeni Water.
It was clear from the evidence that the employee once registered at UKZN but was excluded at some stage, which meant he never graduated. The false utterance and presentation of a falsified certificate from UKZN misled Umgeni Water to think the employee possessed a chemical engineering degree.
Employment relationship
The court held that this act can be regarded as fraud as it induced Umgeni Water to offer him employment of which had it known about the fraudulent degree/certificate it would not have.
The ‘employment relationship’ was under false pretence and cannot be regarded as true. The graduate programme requirements specified a candidate with a chemical engineering degree.
It was clear that there was no employment contract as most of the terms were broken by the employee.
Monetary claim
Umgeni Water stated it was entitled to compensation from the employee’s provident fund for the unjust enrichment. Umgeni Water referred the court to s 37D(1)(b)(ii) of the Act. This section protects ‘the employer’s right to pursue the recovery of money due to it arising, inter alia, out of any fraud perpetrated against it by its employee’ (para 46).
The court found that the conduct of the employee falls in the ambit of this section of the Act and warrants Umgeni Water to have a valid claim against his pension fund money.
The court ordered the employee to pay Umgeni Water an amount of R 2 203 565,04 with ‘interest from date of demand to the date of final payment’ (para 54). Furthermore, Umgeni Water was entitled to execute the judgment against the employee’s provident fund.
Conclusion
Employers have a right to complete and correct information of a candidate pertinent to the job to decide to employ that candidate.
It is important for employers before appointing a candidate to verify the qualifications through South African Qualifications Authority (SAQA). On the other hand, candidates must not mislead the prospective employer as the National Qualifications Framework Amendment Act 12 of 2019 stipulates this ‘it is a criminal offence to misrepresent qualifications’ (Labour Guide ‘The case of the employee who misrepresented his qualifications’ (https://labourguide.co.za, accessed 3-4-2023)).
It is further important to note that the misrepresentation of a qualification also has a huge impact on other potential candidates who were not shortlisted and/or appointed because of the forged qualification presented by the successful candidate.
It is clear from the above that there is legal recourse for an ‘employer who subsequently finds that it has employed someone who deceived it prior to employment’ (EOHCB ‘Disclosure of information at interviews’ (www.eohcb.co.za, accessed 3-4-2023)).
Phumzile Penelope Ziqubu LLB (UKZN) writes in her personal capacity.
This article was first published in De Rebus in 2023 (May) DR 38.
