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Employer rights against deceitful job applicants
Fri, 21 Jan 2011 07:31
It is not unusual for job applicants to deceive prospective employers in order to improve their chances of getting the job. In a South Africa where jobs are particularly scarce and competition for work is fierce such deception is very common and takes many forms.
Some examples are:
- Claiming qualifications that do not exist
- Falsification of CVs and academic certificates
- Provision of false reference letters
- Exaggeration of skills and experience
- Lying about reasons for termination of previous jobs
- Denying that the employee is pregnant
- Lying about the employee’s age
- Provision of incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references
- Withholding of information such as criminal convictions and disciplinary action.
The key questions are:
- “What information does the law require the job applicant to provide?” and
- “What legal recourse is there for the employer who subsequently finds that it has employed someone who deceived it prior to employment?”
It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant. While this is the general rule, many exceptions exist, 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 arbitrary grounds including race, gender, pregnancy, age and numerous others.
Logically therefore, it would normally be unacceptable to fire an employee who had withheld information related to these prohibited arbitrary criteria. For example, it would, in most cases, be wrong to fire an employee for having failed to inform the employer, during the job application stage, that she was pregnant. Although the employee may have proved to have been dishonest about this at her interview, job applicants are not required to divulge such information.
However, where the deception of the employee relates to the employee’s ability to do the job and thereby satisfy the employer’s operational requirements the employer is on firmer ground should it wish to bring disciplinary action against the employee.
For example, in the case of Evans vs Protech (2002 7 BALR 704) the employee had, prior to employment, informed the employer that she had previously worked as a qualified hairdresser and that a certain person was to be contacted for a reference. The employee was then employed.
Thereafter the employer discovered that the employee had never worked with the alleged referee and that the employee had not been a qualified hairdresser. The employer therefore dismissed the employee. The CCMA found that the dismissal was procedurally unfair because no disciplinary hearing was held, but substantively fair because the employee had not been justified in lying about her qualifications during the job application stage.
In the case of TAWU obo Louw vs Volkswagen (2003 BALR 493) the job applicant, during the job application stage, falsified the salary he had been earning at a previous job. On the weight of this false information Volkswagen employed him in a senior post. Volkswagen dismissed the employee on discovering the lie. The CCMA found the dismissal to be fair on the grounds that the employee’s dishonesty had destroyed the trust relationship between the parties.
However, in the case of NUMSA obo Engelbrecht vs Delta Motor Corporation (1998 5 BALR 573) the CCMA found the dismissal of Engelbrecht to be unfair despite the fact that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.
The above labour law cases neither mean that it will always be acceptable to dismiss employees for having given false information when applying for a job nor that it will always be unfair to fire employees who had withheld information such as acts of dishonesty.
What these cases do show is that:
- Employers need to check all information that job applicants give them
- Employers have the right to question such information even after having hired the job applicant
- Employers must hold disciplinary hearings before acting against deceitful employees
- Employers must, before holding such hearings, consult with a reputable labour law expert as to whether the deceptive behaviour in each individual case merits discipline and dismissal.
By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za.
This article first appeared in The Star.