In Standard Bank of SA Ltd v CCMA (1998) 19 ILJ (LC), the Labour Court held that one of the fundamentals of the employment relationship is that an employer should be able to place trust in an employee. A breach of this trust in the form involving dishonesty goes to the heart of the employment relationship and is destructive of it.
In the labour law fraternity, the Labour Courts have been strict and have not hesitated to find dismissals based on the employee’s misrepresentation of qualifications or certain state of affairs crucial to the employer’s business to be fair. In Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC), the employee had misrepresented in his CV that he had a degree in technology marketing and was dismissed for dishonesty. A bargaining council commissioner upheld the dismissal and on review to the Labour Court, the award was set aside and the employee’s dismissal was found to be unfair. But the LAC reversed the Labour Court judgment on appeal, and restored the commissioner’s award. The LAC held that –
“The fact that the misrepresentation in the CV might very well not have induced the [employee’s] appointment to the post most certainly does not detract from the fact of the [employee’s] initial dishonesty. The dishonesty as contained in the CV is ultimately what underpins the substantive fairness of the [employee’s] dismissal. Why did the [employee] 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.”
Recently, in LTE Consulting (Pty) Ltd v CCMA and others  12 BLLR 1259 (LC), the Labour Court had to determine whether the employee’s misrepresentation in his CV that he was a qualified chartered accountant constituted gross dishonesty which justified dismissal. In this case, the employee was appointed as a financial manager with effect from 1 December 2009, he was turning 82, well beyond the company’s ordinary retirement age of 65. The employee was 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.
It was in the process of considering the fixed-term contract that Mr Vantyi, the company secretary came across the employee’s CV on his file. The employee’s file revealed that certain certificates were outstanding, including the employee’s B.Com, “chartered accountant (SA)” qualification, and MBA from Wits. When Mr Vantyi raised this with the HR department, he was told that the certificates had been requested but never provided by the employee. Mr Vantyi thus commenced with an investigation, which revealed that the employee was not a chartered accountant and that he did not have an MBA from Wits.
Based on the outcome of the investigation, four years later, on 13 December 2013, the employee was charged with gross dishonesty -
“in that on your [CV] submitted to the employer for your employment application for the position of financial manager you indicated that you were qualified as a chartered accountant (South Africa) and that you confirmed this submission in your interview with the employer’s interview panel on 26 November 2009.”
The employee was dismissed on 20 January 2014 following a disciplinary hearing at which he was found guilty. The employee challenged the fairness of his dismissal to the CCMA. The CCMA commissioner found that the employee’s dismissal was substantively unfair and awarded him six months’ compensation amounting to in excess of R300 000.
Aggrieved by the CCMA award, the company approached the Labour Court to review and set it aside. In determining the matter, the Labour Court considered the event of the interview process which formed the basis of the charges against the employee. The company’s evidence was that the interview was a competitive one with three candidates having been interviewed, including the employee. The employee’s interview scorecard reflects high scores for tertiary qualifications and job knowledge, with recorded annotations including that the employee was “financially qualified and experienced” and that he was a “chartered accountant”. The employee was the preferred candidate and the interview panel recommended his employment based on his CV and interaction during the interview. Furthermore, it was testified that the fact that the employee had a B.Com and was a chartered accountant, influenced the panel to recommend him for the job. This was notwithstanding that being a chartered accountant was not an express requirement for the job.
The employee admitted that he was not a chartered accountant and that he does not hold a B.Com or an MBA from Wits. The employee sought to deflect his dishonesty either on the basis of recognition of prior learning or that he had equivalent qualifications. In relation to the chartered accountant issue, the employee testified that “I wrote the examination for B.Com first year accountancy, which is equivalent to CA”. The employee argued that the ‘company was looking for something to put him in a position where he will have to retire and that is why it came up with all these stupid things’.
During oral arguments before the Labour Court, the employee’s representative submitted that the employee was technically not guilty of the charge of misconduct because the company had not established that he was not “qualified” to be a chartered accountant (as opposed to not being registered as one), and because the employee had not “confirmed this submission in [his] interview”. It was argued further that insofar as the employee had misrepresented that he was a chartered accountant, this was not material because this was not a requirement for appointment to the position of financial manager.
The Labour Court rejected the employee’s claims that the company had failed to prove that he was not “qualified” to be a chartered accountant, as opposed to being registered as one, and that the misrepresentation should not be held against him because registration as a chartered accountant was not required for the post of financial manager. The Labour Court held that the fact that such a qualification was not a requirement for the job did not detract the employee’s dishonesty in misrepresenting his qualifications.
Turning to the question whether the commissioner’s award was reasonable, Myburgh AJ concluded that –
“To my mind, the answer is clearly “no”. Manifestly, the employee was grossly dishonest in misrepresenting that he is a chartered accountant. To aggravate this grave misconduct, he also lied about having a B.Com and MBA, and showed no remorse whatsoever. This to the extent of describing the company’s concerns as being about “stupid little things”. Dismissal was patently warranted.”
The Labour Court reviewed and set aside the award and ruled that the dismissal was fair. This judgment adds to a number of judgments from the Labour Courts that have upheld the dismissals of employees who make false claims in their CVs. It is clear that the Labour Courts are willing to take a dim view on employees who are dishonest as honesty is central to the employment relationship. The judgment also serves as a reminder to employers to always check and seek to verify employees’ qualifications rather than taking them at face value.