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.