CHARLATONS AT WORK
Social media was abuzz recently over the unfolding of the ‘Dr. Matthew Lani’ story. This article does not seek to delve extensively into commentary surrounding ‘Dr. Matthew’ given the number of investigations presently underway.
This article focuses on the key takeaways for employers pertaining to due diligence when it comes to recruitment and hiring, and the recourse available in circumstances where misrepresentation of qualifications has occurred.
Conducting due diligence investigations prior to the hiring of a potential employee is crucial for any employer: firstly, such investigations are active steps to ensure that the potential employee is suitably (and legitimately) qualified; secondly, these investigations assist in bringing to the fore potential risks associated with hiring certain individuals.
Due diligence investigations may consist of, but are not limited to:
- Request for original documentation to be presented prior to sending an offer;
- Request for certified copies of the above documentation;
- Managed Integrity Evaluation (“MIE”) checks to verify, inter alia, qualifications and criminal records;
- Reference checks to be provided and vetted.
Unfortunately, these checks are not foolproof and misrepresentations still permeate the workplace. This was the case in Lesedi Local Municipality v Mphele and Others (JR1546/20)  ZALCJHB 183.
In 2015, Lesedi Municipality (“Municipality”) advertised a position for Chief Financial Officer, with the requirements for the position being as follows:
- Preferably a BCom Hons in Accounting/degree in Finance or NQF Level 7 qualification with relevant experience;
- A CA(SA) qualification will be an added advantage;
- Compliance with the minimum competency levels prescribed in the Treasury Regulations;
- Thorough understanding and knowledge of Local Government financial environment and administration including MFMA. Treasury Regulations, Supply Chain Management, GAAP, IFRS and GRAP;
- A minimum of 7 years’ managerial experience at senior and middle management level, of which 5 years must have been at senior management level.
Mphele applied for the position and was appointed. Fast forward to 2018, the Municipality instructs an investigative firm to conduct a forensic investigation into Mphele’s qualifications, the results of which revealed that Mphele misrepresented his qualifications and professional memberships, in his CV.
The Municipality instituted disciplinary action against Mphele and he was found guilty of gross dishonesty and dismissed. Mphele went on to refer an unfair dismissal dispute at the CCMA and after protracted proceedings, the commissioner found his dismissal to be substantively unfair and ordered reinstatement with backpay, to the amount of R2,058 333.27.
On review, the Labour Court found that the conclusion reached by the commissioner did not align with the evidence at all and was not persuaded that the misrepresentations in his CV were a genuine error on Mphele’s part. Further, the Court found that “the commissioner quite evidently failed to properly assess the evidential material placed before him. Had he done so, he would have found that Mphele misrepresented his educational qualifications and his professional standing”.
The Court thus found that Mphele’s dismissal was procedurally and substantively fair.
When employers are faced with situations of misrepresentations of qualifications or the like, they are not left without recourse. Once an investigation has been concluded and it can be demonstrated that a misrepresentation has occurred, employers are entitled to institute disciplinary action.
Mphele is an illustration of the Courts displeasure of people misrepresenting their qualifications and as Ford AJ aptly described: “the misrepresentation of qualifications is a pervasive and menacing evil that greedily devours and indelibly taints our employment landscape”.
Shepstone & Wylie’s Employment Law Department is available to assist with drafting the requisite contractual clauses to mitigate risk. For further information, please contact 031 575 7000.