The scourge of misrepresenting qualifications

In Lesedi Local Municipality v Mphele and Others [2023] 9 BLLR 939 (LC), the Labour Court (LC) held as follows: ‘We live in a world; where inauthenticity and fake credentials have become the norm, where quick wealth and instant gratification is valued more than integrity, where the disgusting trend of augmenting one’s qualifications and achievements have become fashionable. This rot must be resisted and exposed at all costs.’ The review application in this matter ultimately turned on this very issue.

 2023/12

By Nadine Mather at Bowmans Law

The Lesedi Local Municipality (the Municipality) sought to appoint a chief financial officer (CFO). The requirements for the position were, among other things, compliance with the minimum competency levels prescribed in the Treasury Regulations and preferably a degree in accounting or finance. The employee completed an application, submitted his curriculum vitae, was interviewed, and was subsequently appointed as CFO of the Municipality.

Several years later, the Municipality conducted an investigation in which it was found that the employee had falsely claimed that he was an accountant and had misrepresented his qualifications and professional memberships in his application. Consequently, the Municipality instituted disciplinary action against the employee on the grounds of dishonesty, and the employee was found guilty and summarily dismissed. Disgruntled with his dismissal, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The material evidence led at the arbitration proceedings at the CCMA included as follows:

• The employee had factually misrepresented –
• having a BCom accounting degree (when in fact he had only obtained a BCom degree);
• having an honours degree in Generally Recognised Accounting Practice (rather he had completed an accounting executive short course with an NQF 8 recognition level); and
• being registered as an accounting officer with the Institute of Administration and Commerce.
• After being unnecessarily evasive, the employee conceded that he had not obtained an accounting degree and that the information reflected in his application was not correct. The employee, however, claimed that the overstating of his qualifications was an error on his part and denied that it was dishonest as alleged by the Municipality.
• While the Municipality conceded that the employee met the general requirements for the position of CFO, the employee was favourably considered, to the exclusion of other candidates, on the basis that he presented himself to be a BCom accounting graduate.

Against this background, the arbitrator found that the employee’s dismissal was substantively unfair as the employee had in fact met the general requirements for the position of CFO. The arbitrator ordered that the employee be reinstated with back pay of around R 2 million. Unhappy with the finding, the Municipality instituted a review application against the arbitrator’s award on the basis that the arbitrator’s decision was one a reasonable decision maker could not reach.

The LC noted that the test in review applications entails ensuring that the arbitrator identified the true issue in dispute and reached a reasonable conclusion based on the evidence presented. Despite overwhelming evidence to the contrary, the arbitrator had found that the employee satisfied the requirements of the position and was, therefore, eligible for appointment as CFO. There was no compelling evidence, on a balance of probabilities, that he had committed misconduct.

The court found that the conclusion arrived at by the arbitrator did not align with the evidence placed before him. The issue before the arbitrator was not whether the employee had satisfied the advertised requirements for the position but whether he had represented that he had certain degrees and professional memberships, which he did not have. This evidence remained largely uncontested and proved that the employee had been grossly dishonest.

The court was not persuaded that the employee had merely made an error when reflecting his qualifications and professional memberships. If this was so, as he had claimed, he would have admitted it at the earliest possible opportunity. He failed to do so and only admitted that he lacked the qualifications when trapped in cross-examination. He nevertheless retained the view that he had done nothing wrong.

Accordingly, the court found that the arbitrator had evidently failed to properly assess the evidence placed before him. Had he done so, he would have found that the employee misrepresented his qualifications and his professional standing. The arbitrator’s decision to reinstate the employee in these circumstances was unreasonable and constituted a decision a reasonable decision maker could not reach. The court further noted that the misrepresentation of qualifications has become a scourge in the employment landscape and can never be condoned. In this regard, the court held that:

‘The misrepresentation of qualifications is a pervasive and menacing evil that greedily devours and indelibly taints our employment landscape. It trivialises our institutions of learning, devalues the sanctity of honest educational pursuits and cheapens legitimate and hard-earned achievements. It can never be excused, rationalised, or condoned. It is sickening to the core and detestable in every possible respect. It is not only morally offensive, it is also vocationally revolting. Every attempt to uproot it must be applauded and rigorously pursued.’

Having had the benefit of a complete record, the court held that it would serve little purpose to have the matter remitted to the CCMA for a hearing afresh when the court was in a position to determine the matter finally. The court ordered that the arbitrator’s award be reviewed and set aside and substituted it with an order that the employee’s dismissal was both procedurally and substantively fair. There was no order as to costs.

Article published with the kind courtesy of Bowmans, for more information please visit www.bowmans.co.za

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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