The need for employers to be able to trust their employees is crucial. For example, employers need to know that their employees and prospective employees are honest as regards the job qualifications they put forward, the work that they do, and the clients that they serve. The employer needs to be sure that its employees do not misuse the knowledge they have of the workings of their organisation for their own personal gain.
In South Africa where there is increased competition for jobs, it is not unusual for job applicants to deceive prospective employers in order to improve their chances of being offered a job.
This type of deception includes:
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
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?
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. Caution should, however, be applied in the manner in which personal information is processed in terms of the Protection of Personal Information Act.
While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstance. 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 dismiss 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, a job applicant, prior to employment, informed the employer that they 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 their qualifications during the job application stage.
However, in another case, the CCMA found the dismissal of an employee to be unfair despite the fact that they had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.
Misrepresentation is not limited to instances where applicants misrepresent themselves in order to gain employment. An employee was dismissed for misrepresenting the employment status of one of their colleagues when they gave a false reference. The employee gave a reference for one of their colleagues confirming that they and their colleague were working for a client of their employer. Further to this they presented themself to be the potential new employer of their colleagues to be a senior software engineer instead of junior. The employee was dismissed and subsequently challenged the fairness of their dismissal at the CCMA. The commissioner ruled that the employee was dismissed for a fair reason and stated that the respondent (employer) discharged the onus of proving that the dismissal of the applicant (employee) was for a valid and fair reason and that the conduct of the applicant resulted in a situation that continued employment would be intolerable.
Employers must:
Ask applicants why they left the previous company they worked for and if any disciplinary action was taken against them. Also, ask about criminal records and other factors that are inherent to the position. Matters become more complicated when the employer failed to ask these questions and later attempts to dismiss employees for misrepresentation or operational reasons. This would include questions relating to criminal records.
Check all information that job applicants give them.
Put in place systems for preventing employees from misusing their knowledge of the organisation for personal gain.
Give employees disciplinary hearings that are procedurally and substantively fair before acting against them for misrepresentation.
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.
Verification of job applicants’ personal information
The Employment Equity Act (EEA) applies to employees, employers, and applicants for employment. The Act prohibits unfair discrimination on listed grounds such as sexual orientation, religion, and disabilities. The Act further states that it is not unfair to distinguish, exclude, or prefer any person on the basis of an inherent requirement for a job, meaning that we may ask applicants to disclose information in order to determine their suitability for a specific position. It is also evident that it is not prohibited to ask applicants about their past criminal records since the Act does not mention criminal records as a form of discrimination.
Employers are however advised to tread carefully when it comes to criminal records. It would be unfair to take a past criminal record for a minor offense into consideration when there is no inherent requirement associated with the position. In such cases, the applicant may have a case of unfair discrimination.
Medical testing of applicants is prohibited unless legislation permits or requires such testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits, or the inherent requirement of a job.
Psychometric testing and other similar assessments are prohibited unless the test or assessment has been scientifically shown to be valid and reliable, can be applied fairly to the employees, and is not biased against any employee or group. It must also be remembered that the applicant must in writing give the prospective new employer permission to conduct certain checks such as credit, criminal record, driver's licence, and qualifications verification.
Key points:
Employers are advised to conduct thorough reference checks prior to signing employment contracts. Wait for the results before appointing the applicant.
Personal information should be processed in accordance with the requirements of the Protection of Personal Information Act.
Always ask questions during the interview regarding (if relevant to the job) criminal records, driver's licences, credit rating, qualifications, and reasons for leaving previous employers.
An employee that is misrepresented themselves must be dealt with in terms of a disciplinary hearing and evidence will have to be adduced proving that the employee effectively destroyed the trust relationship that existed between them and the employer.
Misrepresentation is an intentional act of misconduct.
Opmerkingen