Can an employee be dismissed for lying on their CV?

Can an employee may be dismissed for misrepresenting his qualifications in his curriculum vitae (“CV”). 

This issue was considered in the case of LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291 (8 August 2017). LTE Consulting Proprietary Limited (“LTE”) appointed Mr Lourens Francois Theron (the “Employee”) as its financial manager on 1 December 2009.

At the time of his appointment he disclosed in his CV that he was a chartered account and possessed a B.Com 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 years old. He was, as a result, well past LTE’s official retirement age of 65. Some four years later, there was an attempt to employ the Employee on a fixed term contract 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 copy of the Employee’s B.Com degree, chartered accountant qualification or MBA on record. While LTE’s human resources department 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 B.Com or MBA degree.

Following a disciplinary enquiry, he was dismissed for gross dishonesty on 20 January 2014. The Employee, feeling aggrieved by his dismissal, referred a dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

The Employee, while admitting he did not have the necessary qualifications, disputed that being a chartered accountant was an express requirement for the job. In any event, so he contended, he had equivalent qualifications and ‘prior learning’ justifying his appointment. The presiding Commissioner held that the Employee’s dismissal had been substantively unfair and ordered that LTE pay the Employee compensation in excess of R300 000.

It appears that the Commissioner reached this decision for the following reasons –

  • The Employee’s dismissal was a sham designed to, in effect, secure his retirement;
  • The Employee’s misrepresentations about his qualifications were not material in securing the position of financial manager;
  • In any event, the Employee had equivalent qualifications;
  • and An assessment of factors in mitigation/aggravation demonstrated that the sanction of dismissal was inappropriate. LTE took the CCMA decision on review to the Labour Court.

Findings

During the course of the review, the Employee contended, among others, that (a) he was not technically guilty of the charge of misconduct 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 immaterial to his appointment.

The Court held that these assertions lacked merit. In so far as the first point was concerned, by relying on his CV during the interview process the employee had confirmed that he was a chartered accountant. In so 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 Employee’s dishonesty in claiming qualifications he did not possess. The Court similarly dismissed the Commissioner’s reasoning holding that the finding that the dismissal was a sham was unsupported.

In addition, the finding that the misrepresentation was immaterial was unreasonable. Even if the Employee possessed equivalent qualifications (which he did not) it would miss the point that he was dishonest about the qualifications he indicated he did possess.

In reviewing the decision, and finding that the Employee’s dismissal was substantively fair, the Court had regard to three decisions that fortified its position. The decisions, and their relevant findings, are as follows: In the decision of SA Post Office Ltd v Commission for 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 position where honesty and integrity are paramount to the execution of duties, is to my mind grossly unreasonable, 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 Department of Home Affairs and another v Ndlovu & others (2014) 35 ILJ 3340 (LAC) the Court held that: the fact that the misrepresentation in the CV might very well not have induced the first respondent’s [employee’s] appointment to the post most certainly does not detract from the fact of the first respondent’s initial dishonesty.

The dishonesty as contained within the CV is ultimately what underpins the first respondent’s dismissal. Finally, in the recent decision of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC), which concerned a security guard failing to disclose that he had a criminal record some 14 years ago at the time of his appointment, the Court held that “the false misrepresentation made by the third respondent [employee] was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees.”

Importance of the case

This case usefully highlights and summarises the pitfalls for employees should they elect to be dishonest in their CV’s. Employees who do so and are outed face the possibility that they will be dismissed for dishonesty. 

By Andre Van Heerden, Senior Associate & Jacques van Wyk, Director at Werksmans Attorneys 

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