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By Ivan Israelstam
You need to trust your employees. If you don’t, you shouldn’t have hired them in the first place. For example, you need to know that your employees, and prospective employees, have the qualifications and experience they say they do. You also need to be sure that your employees don’t misuse the knowledge they acquire in your company for their own personal gain.
In South Africa, where there is heavy competition for jobs, it is not unusual for job applicants to deceive prospective employers to improve their chances of being offered a job. This type of deception includes:
- Claiming they have certain qualifications but in truth they don’t;
- Falsifying their CVs and academic certificates;
- Providing false reference letters;
- Exaggerating skills and experience;
- Lying about reasons for leaving previous jobs;
- Denying a pregnancy;
- Lying about their age;
- Providing incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references; and
- Withholding information, such as criminal convictions and disciplinary action.
The question is:
- What information does the law require the job applicant to provide; and
- What legal recourse is there for you, the employer, who find out after you’ve employed someone that they’ve deceived you?
What information are you allowed to ask candidates?
It is generally accepted that you have a right to full and accurate information that is relevant to you employing someone.
While this is the general rule, there are many exceptions, particularly where the information in question relates to the employee’s personal circumstances.
For example, section 6 of the Employment Equity Act (EEA) prohibits discrimination against job applicants on a number of grounds, including:
- Race;
- Gender;
- Pregnancy; and
- Age.
This means that it would normally be unacceptable to fire an employee who withholds information related to the above four points:
- For example, it would, in most cases, be wrong to fire an employee for not having told you, during the job application stage, that she is pregnant.
Although this may prove the employee is dishonest, job applicants are not required to divulge such information.
However, where the employee’s deception relates to her ability to do the job, and thereby satisfy your operational requirements, you will be on firmer ground if you decide to bring disciplinary action against her.
For example, in the case of Evans vs Protech (2002 7 BALR 704):
- The employee, y, had, before she was employed, informed the employer, z, that she had previously worked as a qualified hairdresser and that z needed to contact x for a reference.
- Y was then employed.
- After this, z discovered that y had never worked with x and that the y was not a qualified hairdresser.
- Z therefore dismissed y.
- The CCMA found that the dismissal was procedurally unfair because the z did not hold a disciplinary hearing. However, the dismissal was substantively fair (follow this link for a definition of substantive fairness) because y had not been justified in lying about her qualifications during the job application stage.
However, in the case of NUMSA obo Engelbrecht vs Delta Motor Corporation (1998 5 BALR 573):
- The CCMA found the Engelbrecht’s dismissal was unfair despite that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty.
- The arbitrator reinstated the employee.
Watch out for misrepresentation among your current employees too!
It is not only job applicant who can be guilty of misrepresentation.
In the case of PSA obo Mojake vs SARS (2005, 12 BALR 1308):
- The employee worked as an auditor for SARS.
- She was dismissed for having written SARS a letter claiming to come from a consumer organisation. The letter requested SARS to cancel the garnishee orders issued against Mojake.
- The CCMA agreed that such misrepresentation merited dismissal but nevertheless ordered the employer to pay the employee compensation because it had breached its own disciplinary procedure in the process in dismissing Mojake.
The decisions in these cases mean that you must:
- Check all information that job applicants give you;
- Put systems in place for preventing employees from misusing their knowledge of the organisation for personal gain;
- Give employees disciplinary hearings that are procedurally and substantively fair before you act against them for misrepresentation; and
- Consult with a reputable labour law expert, before you hold a disciplinary hearing about whether the deceptive behaviour in each individual case merits discipline and dismissal.
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