ou can be ismissed for lying in your CV · Mr Theron as a financial man-ager on December 1 2009....
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The copyright act of 1978 (as amended) prohibits the reproduction of this copy IN ANY FORMAT, (See Clause 4 Terms and Conditions) without prior permission of the original publisher. Publication THE TIMES – THE LEGAL TIMES Page 16 Date Fri 24 Nov 2017 AVE (ZAR) 32495.87 ou can be ismissed for lying in your CV Andre van Heerden and Jacquesvan Wyk Whether an employee may be dismissedfor misrepresenting his qualifications in his cur- riculum vitae (CV) was consid- ered in the case of LTE Con- sulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJIHB 291 (August 8 2017). LTE Consulting appointed Mr Theron asa financial man- ager on December 12009. At the time of his appointment, the employee disclosed in his CV that he was a chartered accountant, and possessed a BCom degree and an MBA from Wits University. The employee's CV was before the panel who interviewed him for the position. At the time of his appointment, the employee was about to turn 82. He was well past LTE's official retire- ment age of 65. Some four years later, there was an attempt to employ the employee on a fixed-term con- tract as an assistant company secretary. This offer was refused by the employee. It was at this time that it was discovered that there was no copyof the employee's BCom degree, chartered accountant qualification or MBAon record. While LTE's human resourcesdepartment had requested this information from the employee, it had yet to be supplied. Following an investigation, it was determined that the employee was not, in fact, a chartered accountant, nor did he possess a BCom or MBA degree. Following a disci- plinary enquiry, he was dis- missed for gross dishonesty on January 20 2014. The employee, feeling aggrieved by his dismissal, referred a dispute to the Com- mission for Conciliation, Medi- ation and Arbitr ation (CCM A). While admitting he did not have the necessary qualifica- tions, he disputed that being a chartered accountant was an express requirement for the job. In any event, so he con- tended, he had equivalent qua- lifications and "prior learning" justifying his appointment. The presiding Commis- sioner held that the emplo yee's dismissal had been substan- tively unfair and ordered that LTE pay the employee com- pensation in excessof R300 000. It appears the Com- missioner reached this deci- sion for the following reasons: &The employee's dismissal was a sham designed to, in effect, secure his retirement; & The emplo yee'smisrepre- xa sentations about his qualifications were not material in securing the position of financial manager; * In any event, the employee had equivalent qualifications; and & An assessmentof factors in mitigation /aggravation demonstrated that the sanction of dismissal was inappropriate. LTE took the CCMA deci- sion on review to the Labour Court. Findings During the course of the review, the employee con- tended, among other things, that (a) he was not technically guilty of the charge of miscon- duct because LTE had not established that he was not "qualified" to be a chartered accountant, and because he had never confirmed same during his interview, and (b) even if he had misrepresented that he was a chartered accountant, this was immate- rial to his appointment. The court held that these asser tions lacked merit. As far as the first point was con- cerned, by relying on his CV during the interview process, the employee had confirmed that he was a chartered accountant. As far as the second point was concerned, the court found that being a chartered accountant was a material requirement for the job. Even if it was not, it did not discount the emplo yee's dishonesty in claiming qualifications he did not possess. The court similarly dis- missed the Commissioner's reasoning, holding that the finding that the dismissal was a sham was unsupported. In addition, the finding that the misrepresentationwasimma- terial was unreasonable. Even if the emplo yeepossessed equivalent qualifications (which he did not), it would miss the point that he was dis- honest about the qualifications he indicated he did possess. In reviewing the decision, and finding that the em- ployee's dismissalwas sub- stantively fair, the court had aem eerpuces regard to three decisions that fortified its position. € In the decision of SA Post Office Ltd v Commissionfor Conciliation, Mediation and Arbitration & Others (2011) 32 ILJ 2442 (LC), the Labour Court held that: "to place an employee who was guilty of dishonesty back in her posi- tion where honesty and integrity are paramount to the execution of duties is, to my mind, grossly unreason- able, 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 decision of Depart- ment of Home Affairs and another v Ndlovu & others (2014)35 ILJ3340 (LAC), the court held that: "the fact that the misrepresentation in the CV might very well not have induced the first respon- dent's [emplo yee's]appoint- ment to the post most cer- tainly does not detract from the fact of the first respon- dent's initial dishonesty . The dishonesty as contained within the CV is ultimately what underpins the first respondent' s dismissal. " e Finally, in the recent decision of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017)38 ILJ881 (LAC), which concerned a security guard failing to dis- close that he had a criminal record some 14years ago, at the time of his appointment, the Cour t held that: "the false misrepresentation made by the third respon- dent [emplo yee]was bla- tantly dishonest in circum- stances in which the appel- lant is entitled as an opera- tional imperative to rely on honesty and full disclosure by its potential emplo yees." Importance of the case This casehighlights the pitfalls for employees should they be dishonest in their CVs. Employees who are outed face the possibility that they will be dismissedfor dishonesty. e Andre van Heerden is a senior associate, and Jacquesvan Wyk a director, at Werksmans Attorneys.
Transcript of ou can be ismissed for lying in your CV · Mr Theron as a financial man-ager on December 1 2009....
The copyright act of 1978 (as amended) prohibits the reproduction of this copy IN ANY FORMAT, (See Clause 4 Terms andConditions) without prior permission of the original publisher.
Publication
THE TIMES – THE LEGAL TIMES
Page
16
Date
Fri 24 Nov 2017
AVE (ZAR)
32495.87
ou can beismissed for
lying in your CVAndre van Heerden and
JacquesvanWyk
Whether an employee may bedismissedfor misrepresentinghis qualifications in his cur-riculum vitae (CV) was consid-ered in the case of LTE Con-sulting (Pty) Ltd v Commissionfor Conciliation, Meditationand Arbitration and Others(JR1289/14)[2017] ZALCJIHB291 (August 8 2017).
LTE Consulting appointedMr Theron asa financial man-ager on December 12009. Atthe time of his appointment,the employee disclosed in hisCV that he was a charteredaccountant, and possessedaBCom degree and an MBAfrom Wits University. Theemployee's CV was before thepanel who interviewed him forthe position. At the time of hisappointment, the employeewas about to turn 82. He waswell past LTE's official retire-ment ageof 65.
Some four years later, therewas an attempt to employ theemployee on a fixed-term con-tract as an assistant companysecretary. This offer wasrefused by the employee.
It was at this time that itwas discovered that there wasno copyof the employee'sBCom degree, charteredaccountant qualification orMBAon record. While LTE'shuman resourcesdepartmenthad requested this informationfrom the employee, it had yetto be supplied.
Following an investigation,it was determined that theemployee was not, in fact, achartered accountant, nor didhe possessa BCom or MBAdegree. Following a disci-plinary enquiry, he was dis-missed for gross dishonesty onJanuary 20 2014.
The employee, feelingaggrieved by his dismissal,referred a dispute to the Com-missionforConciliation, Medi-ation andArbitration (CCMA).While admitting he did nothave the necessary qualifica-tions, he disputed that being achartered accountant was anexpress requirement for thejob. In any event, sohe con-tended, he had equivalent qua-lifications and "prior learning"justifying his appointment.
The presiding Commis-sioner held that the employee'sdismissal had been substan-tively unfair and ordered thatLTE pay the employee com-pensation in excessofR300 000. It appears the Com-missioner reached this deci-sion for the following reasons:&The employee's dismissalwas a shamdesigned to, ineffect, secure his retirement;
&The employee'smisrepre-xa
sentations about hisqualifications were notmaterial in securing theposition of financialmanager;
* In any event, the employeehad equivalentqualifications; and
& An assessmentof factors inmitigation /aggravationdemonstrated that thesanction of dismissalwasinappropriate.LTE took the CCMA deci-
sion on review to the LabourCourt.
FindingsDuring the course of thereview, the employee con-tended, among other things,that (a) hewasnot technicallyguilty of the charge of miscon-duct because LTE had notestablished that he was not"qualified" to be a charteredaccountant, and because hehad never confirmed sameduring his interview, and (b)even if he had misrepresentedthat he was a charteredaccountant, this was immate-rial to his appointment.
The court held that theseasser tions lacked merit. As faras the first point was con-cerned, by relying on his CVduring the interview process,the employee had confirmedthat he was a charteredaccountant.
As far as the secondpointwas concerned, the courtfound that being a charteredaccountant was a materialrequirement for the job. Even ifit was not, it did not discountthe employee's dishonesty inclaimingqualificationshe didnot possess.
The court similarly dis-missed the Commissioner'sreasoning, holding that thefinding that the dismissalwasa sham was unsupported. Inaddition, the finding that themisrepresentationwasimma-terial was unreasonable. Evenif the employeepossessedequivalent qualifications(which he did not), it wouldmiss the point that he was dis-honest about the qualificationshe indicated he did possess.
In reviewing the decision,and finding that the em-ployee's dismissalwas sub-stantively fair, the court had
aemeerpuces
regard to three decisions thatfortified its position.€ In the decision of SA Post
Office Ltd v CommissionforConciliation, Mediation andArbitration & Others (2011)32 ILJ 2442 (LC), the LabourCourt held that: "to place anemployee who was guilty ofdishonesty back in her posi-tion where honesty andintegrity are paramount tothe execution of duties is, tomy mind, grossly unreason-able, but more importantly,it cannotbe right and properto reinstate or re-employ aperson in a position that wassecured by the making offalsestatements."
*In the decision of Depart-ment ofHomeAffairs andanother v Ndlovu & others(2014)35 ILJ3340 (LAC), thecourt held that: "the fact thatthe misrepresentation in theCV might very well not haveinduced the first respon-dent's [employee's]appoint-ment to the post most cer-tainly does not detract fromthe factof the first respon-dent's initial dishonesty . Thedishonesty ascontainedwithin the CV is ultimatelywhat underpins the firstrespondent' s dismissal. "
e Finally, in the recentdecisionof G4SSecure Solutions (SA)(Pty) Ltd v Ruggiero NO &others (2017)38 ILJ881(LAC), which concerned asecurity guardfailing todis-close that he had a criminalrecord some14years ago,atthe time of his appointment,the Court held that: "thefalsemisrepresentationmadeby the third respon-dent [employee]wasbla-tantly dishonest in circum-stances in which the appel-lant is entitled asan opera-tional imperative to rely onhonesty and full disclosureby its potential employees."
Importance of the caseThis casehighlights the pitfallsfor employees should they bedishonest in their CVs.Employees who are outed facethe possibility that they will bedismissed for dishonesty.e Andre van Heerden is asenior associate, andJacquesvan Wyk a director,at Werksmans Attorneys.
