LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291 (8 August 2017)

Principle:

Even though a particular qualification is not required for a job, to represent that you do have that qualification is a grossly dishonest misrepresentation, justifying dismissal.

Facts:

In 2009, when the employee was employed by the company as financial manager and company secretary, he was turning 82, well beyond the company's ordinary retirement age of 65. In 2013, whilst continuing as financial manager, he was removed as company secretary; this was motivated on the basis of BEE considerations. In due course the employee was offered the position of assistant company secretary on a fixed-term contract running from 1 August 2013 to 31 January 2014, (and a subsequent offer of a permanent position of assistant company secretary), but he refused these offers, which appeared to have been an attempt at effectively retiring the employee. In the course of these negotiations it was discovered that the employee was not a chartered accountant and that he did not have a B Comm or a MBA degree, as represented on his CV.

The employee was then charged with gross dishonesty, because on his CV submitted to the employer in 2009 in his original employment application, he indicated that he was qualified as a chartered accountant and he confirmed this in his interview with the employer's interview panel.

Following a disciplinary inquiry at which he was found guilty, the employee was dismissed. An unfair dismissal dispute was referred to arbitration and the commissioner determined that the employee's dismissal was substantively unfair and awarded him six months' compensation amounting to in excess of R300 000. The commissioner was of the view that had the employee accepted the offer of a company assistant secretary there would be no need for the company to dig into his CV as a means to get rid of him. The commissioner also seems to have been of the view that the representations in question by the employee in his CV were not material in securing the position of financial manager, and, in any event, that he had equivalent qualifications.

The company sought to set aside this award on review. The Labour Court considered all the commissioner's reasons to be unreasonable. The commissioner's central finding that the dismissal was a sham designed to effectively secure the employee's retirement was rejected by the LC, which concluded that the employee's misconduct was very serious and deserving of dismissal.

Regarding the commissioner's finding that the employee's misrepresentation about his chartered accountant qualifications was not material, because this was not a requirement for the post, this was also rejected by the LC as it missed the point. There was also no justifiable basis for this conclusion on the evidence led, as clearly the employee's qualifications had played a part in him securing the position. The Labour Court upheld the employee's dismissal. It is clear from the judgment that even if a particular qualification is not an express requirement for a job, to represent that you do have that qualification is a grossly dishonest misrepresentation, justifying dismissal.

Extract from the judgment:

Myburgh AJ:

[17]   Mr Hayward, who appeared for the employee, made the following main submissions in oral argument. Firstly, the employee was technically not guilty of the charge of misconduct because the company had not established that he was not "qualified" to be a chartered accountant (as opposed to not being registered as one), and because the employee had not "confirmed this submission in [his] interview". Secondly, insofar as the employee had misrepresented that he was a chartered accountant, this was not material because this was not a requirement for appointment to the position of financial manager. Thirdly, there had been a failure to cross examine on certain aspects of the matter. Fourthly, the company's pleaded grounds of review were limited and, in effect, prohibited it from attacking the reasonableness of the outcome of the award. Fifthly, in any event, the outcome of the award was reasonable.

[18]   To my mind, there is no merit in any of these points. As to the first point, it is facile to contend that the employee is qualified to be a chartered accountant - he is not, inter alia, because he has not passed the board examination and because he is not registered as a chartered accountant with the relevant regulatory authority. It can also not be contended that the employee did not confirm that he was a chartered accountant during the interview - he did so by handing in his CV at or before the interview.

[19]   Regarding the second point, it is clear from the evidence of Mr Chitenhe and the employee's interview scorecard that the fact that the employee was (purportedly) qualified as a chartered accountant was a material factor in his appointment as financial manager (and understandably so). In any event, accepting that such a qualification was not a requirement for the job, this does not detract from the employee's dishonesty in misrepresenting that he was a chartered accountant.

[20]   Regarding the third and fourth points, the employee was cross examined over the material aspects of the matter, and the company's pleaded grounds of review (albeit brief) are framed widely enough to permit an attack on the reasonableness of the outcome of the award.

[21]   That leaves the central controversy between the parties, namely whether a reasonable commissioner could have found the employee's dismissal substantively unfair. To my mind, the answer is clearly "no". Manifestly, the employee was grossly dishonest in misrepresenting that he is a chartered accountant. To aggravate this grave misconduct, he also lied about having a B.Com and MBA, and showed no remorse whatsoever. This to the extent of describing the company's concerns as being about "stupid little things". Dismissal was patently warranted.

[22]   I am fortified in my view that the commissioner's decision was unreasonable by three judgments of the LAC, which are directly in point. The first is SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2442 (LAC). The employee had misrepresented that she had a driver's licence in her application for employment and was dismissed for dishonesty. A CCMA commissioner found her dismissal substantively unfair and reinstated her, with the award having been upheld on review by this court. But the LAC reversed this court on appeal, with Waglay DJP (as he then was) finding the award unreasonable, inter alia, on this basis:

"[34]   ... 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."

[23]   The second judgment is Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC). The employee had misrepresented in his CV that he had a degree in technology marketing and was dismissed for dishonesty. A bargaining council commissioner upheld the dismissal, with the award having been set aside on review by this court. But the LAC reversed this court on appeal, and restored the commissioner's award. In the process, Dlodlo AJA held:

"The fact that the misrepresentation in the CV might very well not have induced the first respondent's appointment to the post most certainly does not detract from the fact of the first respondent's initial dishonesty. The dishonesty as contained in the CV is ultimately what underpins the substantive fairness of the first respondent's dismissal. Why did the first respondent put in his CV that which is untrue? He knew how to describe the MBA degree which was then unfinished. He could have described the bachelor of technology marketing degree similarly if he found it necessary to mention it at all in his CV."

[24]   The third and most recent judgment is G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC). The employee failed to disclose a criminal conviction in his application for employment as a security guard and was dismissed for dishonesty (14 years later). A CCMA commissioner found the dismissal substantively unfair and awarded the employee compensation, with the award having been upheld on review by this court. But, again, the LAC reversed this court on appeal and set aside the award, with Savage AJA finding:

"[30]   ... The false misrepresentation made by the third respondent 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. It induced employment and when discovered was met with an absence of remorse on the part of the third respondent. The fact that a lengthy period had elapsed since the misrepresentation, during which time the third respondent had rendered long service without disciplinary infraction, while a relevant consideration, does not compel a different result. This is so in that the fact that dishonesty has been concealed for an extended period does not in itself negate the seriousness of the misconduct or justify its different treatment. To find differently would send the wrong message."

[25]   Turning to the five findings made by the commissioner identified in para 16 above, I consider each of them to be unreasonable in themselves. To begin with the commissioner's central finding that the dismissal was a sham designed to effectively secure the employee's retirement, it is unreasonable in that it cannot be reconciled with Mr Vantyi's (unchallenged) explanation about how he came to learn of the problems with the employee's CV. What further belies the finding of a sham is the fact that, objectively, the employee's misconduct was very serious and deserving of dismissal. Regarding the finding that the misrepresentation about the chartered accountant qualification was not material, as already mentioned, there is also no justifiable basis for this in the evidence. Regarding the finding that the employee had equivalent qualifications, this is unreasonable because it misses the point, and, in any event, did not extend (on the commissioner's own findings) to the employee's claim that he is a chartered accountant. That leaves the commissioner's unarticulated assessment of factors in mitigation / aggravation in favour of the employee in relation to sanction, which is unreasonable on the basis of the three LAC judgments referred to above.

[26]   In relation to the issue of relief, the parties agreed that, in the event of it being found that the award is reviewable, this court should finally determine the dismissal dispute. In circumstances where I have found that the commissioner's decision not to uphold the employee's dismissal was unreasonable, it follows that I consider it to have been substantively fair.

[27]   Regarding costs, in circumstances where the employee cannot be held responsible for the commissioner's unreasonable award, I do not believe that it would be just and equitable that he be made to pay the costs of the review, despite having been unsuccessful in his opposition thereof.

Order

[28]   In the result, the following order is made:

  1. The second respondent's award is reviewed and set aside;
  2. The dismissal of the third respondent by the applicant is declared to have been substantively fair;
  3. There is no order as to costs.