An interesting question arises in relation to circumstances where a job applicant has been dishonest in their CV or during the interview process and they are subsequently appointed as the successful candidate, but the dishonesty is only discovered several months (or even years) afterwards. The issue could be complicated even further by the fact that the act of dishonesty may at face value have no impact on the employee’s employment with the employer. The employee may even be a good performer and an asset to the organisation.
The Labour Appeal Court has however made it clear on numerous occasions that such conduct by a job applicant is unacceptable and that dismissal is often an appropriate sanction by the employer. In South African Post Office Limited v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2442 (LAC) the job applicant had indicated in her CV that she possessed a valid driver’s license when applying for a job which required her to have such a license. After she was appointed to the position, it transpired that the employee did not have a driver’s license as she had claimed. The employer then charged her with dishonesty. The employee claimed that someone else had typed her CV and that she had not checked it before submitting it. The Labour Appeal Court found that her version was improbable and that she had deliberately misled the employer to ensure that she was shortlisted for the interview. The Court found that her dismissal was fair.
In Department of Home Affairs and Another v Ndlovu and Others (2014), 35 ILJ 3340 (LAC) a job applicant had misrepresented his qualifications in his CV. He claimed that he had obtained a bachelor’s degree in Technology Marketing during 2003, some three years before applying for the position with the employer. After he was employed, the employer discovered that the employee had not obtained such a degree and he was charged with dishonesty and dismissed. Once again the Labour Appeal Court found that dismissal was the appropriate sanction as the employee had deliberately misled the employer in regard to his qualifications.
In G4S Secure Solutions (SA) (Pty) Ltd v Ruggerio N.O and Others (2017), 38 ILJ 881 (LAC) a job applicant for the position of security guard had stated ‘no’ on his application form when asked if he had any prior criminal convictions. Some fourteen years after his appointment, the employer discovered that he indeed had two previous criminal convictions which he had failed to disclose – one for rape and one for intent to do grievous bodily harm. The employee claimed that he was unaware of his criminal convictions, as he had not gone to jail after being convicted but had received other forms of punishment. The Labour Appeal Court found that the employee was aware of the fact that he had been convicted and punished for those crimes and that he was obliged to disclose this to the employer. It also found that the employee’s dishonesty and failure to disclose his criminal convictions led directly to him being employed. The fact that it had been concealed for such a long period of time, while a relevant consideration, did not detract from the seriousness of the misconduct.
More recently, in LTE Consulting (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1289/14, 8 August 2017) the Labour Court once again found that the dismissal of an employee who deliberately misrepresented his qualifications in order to secure employment was fair, particularly in circumstances where the employee had shown no remorse for such misconduct.
The case law shows that the Courts place a high premium on honesty, trust and good faith in the employment relationship. An act of dishonesty by the employee (including a job applicant) directly impacts on the trust relationship and is likely to result in an irretrievable breakdown of the employment relationship. The job market is tough and it often happens that employees may feel the need to embellish or exaggerate their accomplishments in their CV. Employers should be alive to this reality and conduct thorough background checks on job applicants before offering them employment.