INFLATED CURRICULUM VITAE CAN LEAD TO DISMISSAL

For me, prevention is always better than cure! So obtaining references and doing a proper reference check is always first prize! If the applicant does not have contactable references, this is always a red flag for me - I mean the reality of the situation is - how can someone not have any contactable references - something is very wrong with this picture and it would need a plausable and valid reason.

No references - no employment!

Inflated curriculum vitae can lead to dismissal
Pierre Marais

11 May 2007 at 06h00

Misrepresenting information or a failure to disclose important information to a prospective employer by a successful job applicant has caused many an employer headaches. The question is how to dismiss such an employee, if at all; in what circumstances and what procedure to use. Misrepresentation could emanate from information contained in a CV or from the interview. In many instances, proper reference checking is not done during the selection process and an employee's poor work performance and or lack of knowledge only surfaces later. Examples of misrepresentation normally emanate from incorrect or inflated qualifications or experience, skills, position and ability.

There are some horror stories in case law relating to misrepresentation of qualifications. Employees are often faced with a predicament as reference to the current employer is not always possible. Where the applicant had long service, the new employer could be precluded from obtaining important information. In order to ensure a reference check from a job applicant's previous employer, many companies will appoint a person conditional upon a favourable reference and confirmation of employment information from the previous employer.

From an employer perspective, the question that requires an answer is what remedy is available to an employer should a current employee have misrepresented or failed to disclose relevant information prior to the commencement of the employment contract. There is also the question as to what extent an employer can use the current employee's conduct, emanating from a period before the start of the employment relationship, to dismiss. When analysing case law, employers have relied on the implied common law principle of requiring an employee, even at the stage of merely being a job applicant, to act truthfully and not to misrepresent or damage the trust relationship. However, as in most labour law matters, a few legal technicalities need to be considered.

The first is that after due consideration of anti-discrimination provisions pertaining to vacancy advertisement, the application form and interview questions, case law supports an employer in enquiring about a prospective employee's qualifications, employment history and conduct before being offered a job.

The customary rationale is an acknowledgement that such information usually has a bearing on determining the suitability of a job applicant. Secondly, case law confirms an employer's right to initiate disciplinary action even where this misrepresentation or failure to disclose has come to the fore after the employee has started work, even if discovered some time later. As these types of offences are normally viewed to be some form of misconduct, disciplinary hearings are required to ensure procedural fairness. Case law seems to view an employee's continued lies, namely after having been confronted with the misrepresentation, as a factor adding to an employer's contention that the trust relationship has been irreparably damaged due to the employee's dishonesty. In this regard, a labour court decision even confirmed the substantive fairness of a dismissal where an employee had long service and the fact that the disputed qualifications were not directly relevant to the employee's daily tasks.

Distinguishable from the aforesaid where an employee deliberately misleads an employer, the failure to disclose important or relevant information to an employer is legally more complex. The first burden to overcome is the general principle that a job applicant is not necessarily obliged to disclose information that is potentially prejudicial to his/her future employer. Notwithstanding the aforesaid and as is applicable in labour law, different circumstances could justify a departure from this general principle. Authoritative labour law experts and also - based on some decisions - do confirm that, dependent upon the nature of the position to be held by an employee and the nature of the prior misconduct, a dismissal for non-disclosure could be justifiable.

For example, an employee applying and getting a job as bookkeeper, but who failed to disclose his previous conviction for armed robbery and theft. In this case the arbitrator considered the work environment, the degree of trust necessary, saw the previous conviction as a material fact and viewed the non-disclosure as fraud. In another case, an employee was reinstated where he was able to prove that the employer had previously condoned such misconduct by another employee. In another case, a dismissal was determined to be unfair where a credit manager's insolvency was due to no fault of his own. Before employers merely dismiss for misrepresentation or non-disclosure, they will be well-advised to obtain professional assistance, including an update on case law and a careful analysis of their own case's specific circumstances.

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944.