You Can’t Always Fire Employees with False Credentials

Common law entitles employers to know all facts about a prospective employee that are relevant to a job application. That is, the employee is obliged to:

• Divulge information relevant to the decision to appoint where it is clear that the employer requires such information
• Answer certain questions truthfully
• Desist from exaggerating job qualifications.

DIVULGING RELEVANT INFORMATION

For example, where an employee applies for the job of a driver he/she would be required to divulge that he/she does not have a driver’s licence.

However, where the information withheld is not relevant to job suitability it would be dangerous for the employer to act against the employee. For example, Had the employee’s job been that of internal office messenger a dismissal might have been inappropriate.

ANSWERING QUESTIONS TRUTHFULLY

Generally, job applicants are required to answer relevant recruitment questions truthfully. However, what is relevant is a matter for debate. For example, a job applicant may well be able to claim that she was not obliged to answer truthfully a question as to whether she was pregnant because this has nothing to do with her ability to do the work. He employer might then argue that the maternity leave would interrupt the continuity of the job. However, the employer would then need to prove that the job required continuity and that no alternative interim measure could be implemented to solve the continuity problem.

It is not enough for the employer to prove the employee guilty of misrepresentation. The employer must prove that honesty is an essential requirement. In NUMSA obo Engelbrecht vs Delta Motor Corporation (1998, 5 BALR 573) the employee had failed to disclose that he had been fired for theft by his previous employer. He had lied during his job interview by saying that he had resigned from the previous employer. Delta Motor Corporation then fired the employee for misrepresentation. Despite the blatant lie told during the job application process the CCMA found that the dismissal was unfair and ordered the employer to reinstate the employee. This was because the employer had condoned a similar lie told by another employee.

EXAGGERATING JOB QUALIFICATIONS

In the case of Hoch vs Mustek Electronics (Pty) Ltd (1999, 12 BLLR 1287) the employee was dismissed for having misrepresented her qualifications. The Labour Court ruled her dismissal to be fair because her dishonesty had destroyed the trust relationship.

Employers are warned however, that It is insufficient merely to allege that the employee has lied or exaggerated. The employer must be able to prove this allegation. In NETU obo Van Dyk vs Amcoal Colliery and Industrial Operations Ltd (2001, 12 BALR 1295) the employee was dismissed for lying about his qualifications as an artisan. However, the employer was unable to prove that Van Dyk had lied. The arbitrator therefore ordered reinstatement with full back pay.

The above case law suggests that employers are allowed to take strong action against employees who were not honest during the selection process. However, this principle only applies where the employer can prove that the employee had dishonestly hidden facts relevant to the inherent requirements of the job. Such proof must be brought to a disciplinary hearing chaired by an impartial chairperson who is fully competent to assimilate the evidence and arrive at a finding that will stand up in court.

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