In Assmang (Pty) Ltd (Black Rock Mine) v Markram (unreported case no. JR 2496/15 of 11 September 2018), the Labour Court adopted a wide interpretation to the meaning of an employee “providing” false evidence in order to secure employment.
The employee had previously been employed by the employer on an apprenticeship contract during which he was required to complete a statutory trade test to qualify for the position for which he was subsequently employed by the employer. After the employer conducted an internal audit to establish the authenticity of the trade certificates that had been issued to its employees, the employer dismissed the relevant employee for having provided false evidence in the form of a false trade certificate to secure employment with the mine.
The main thrust of the employee’s defence was that he had not “provided” false evidence due to the fact that the trade certificate in question was never handed to him but had been issued and sent directly to his employer by the agency responsible for maintaining accurate records of trade qualifications – namely the Quality Council for Trades and Occupations (QCTO). It was argued that the employee had not acted dishonestly as he had not been instrumental in providing the false trade certificate to the employer.
After the CCMA Commissioner had found that the dismissal of the employee was substantively unfair, the employer took the decision on review in the Labour Court. The court was faced with the question whether the only reasonable inference to be drawn from the evidence presented at the arbitration was that the employee knew he had not obtained the requisite qualification and had secured his employment in a dishonest manner. In assessing the evidence, the Labour Court found that the only person who stood to gain from a certificate that purportedly demonstrated that he was qualified for the position, when in fact he was not, was the employee and that the notion that a third party had independently, and for no known reason, produced a false certificate without any assistance from the employee was “fanciful to say the least”.
The Labour Court held that it was inconsequential that the employee had not “provided” the false evidence to the employer himself. The reasonable inference was that the employee had knowledge of the fact that he was employed by the employer under a false impression about his qualified status – a clear expression of dishonest conduct on the part of the employee justifying his dismissal. The Labour Court found that the Commissioner failed to consider the unavoidable implication of inconsistencies in the documentation in support of the employee’s so called qualification. The Commissioner failed to confront and evaluate the probabilities of the mutually exclusive versions of the witnesses who testified. In the absence of evidence why the employer would want to falsely implicate the employee who had been working for it for a number of years, and how it would have contrived to ensure that the QCTO records corroborated the falsehood, the court found that there was no factual basis for drawing the inference which the Commissioner had drawn, namely that it was all a result of the employer’s handiwork.
The Labour Court reviewed and set aside the finding of the CCMA Commissioner and replaced it with a finding that the dismissal was substantively fair. Furthermore, and in emphasising its distaste towards the level of dishonesty on the part of the employee, the Labour Court granted a costs order against the employee and its representative union.