Brief Summary

Labour Law — Dismissal — Substantive fairness — Employee misrepresenting qualifications in CV — Employee dismissed for gross dishonesty regarding qualifications — Commissioner found dismissal substantively unfair — Review application by employer to set aside award — Court held that commissioner’s finding was unreasonable and that dismissal was fair.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a review application in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA) brought in the Labour Court, Johannesburg. The applicant was LTE Consulting (Pty) Ltd (the employer). The first respondent was the Commission for Conciliation, Mediation and Arbitration (CCMA), the second respondent was the CCMA commissioner who issued the arbitration award (Commissioner Malubane Buti), and the third respondent was Mr Lourens Francois Theron (the employee).

The procedural history began with the employee’s employment as financial manager from 1 December 2009. In December 2013 the employer charged him with gross dishonesty for allegedly misrepresenting, in his CV and during the interview process, that he was a chartered accountant (South Africa). Following a disciplinary enquiry, the employee was dismissed on 20 January 2014. He referred an unfair dismissal dispute to arbitration, where the commissioner found the dismissal substantively unfair and awarded the employee six months’ compensation (in excess of R300,000) in an award dated 30 April 2014.

The employer approached the Labour Court to review and set aside that award. The general subject matter of the dispute was the substantive fairness of dismissal for dishonesty, specifically involving misrepresentation of qualifications in a CV and whether the commissioner’s conclusion that dismissal was substantively unfair was reasonable on review.

2. Material Facts

The employee commenced employment with the employer as financial manager with effect from 1 December 2009. At the time of appointment he was approximately 82 years old, which was well beyond the employer’s ordinary retirement age of 65. The record also indicated that he may have performed functions associated with company secretary work at some stage, and later events revealed tension around retirement-related arrangements.

During 2013 the employer considered offering the employee a role as assistant company secretary on a fixed-term contract (running from 1 August 2013 to 31 January 2014). While processing matters connected to that proposed contract, the employer’s company secretary, Mr Vantyi, located the employee’s CV in the personnel file. The CV reflected outstanding certificates and claimed qualifications including a B.Com, a “chartered accountant (SA)” qualification, and an MBA from Wits. When the qualification certificates were queried internally, it emerged that they had been requested from the employee but had not been provided. An investigation followed, leading the employer to conclude that the employee was not a chartered accountant and did not hold an MBA from Wits. The employer also proceeded on the basis that he did not hold the claimed B.Com.

These aspects became central and were treated as effectively undisputed in the Labour Court review because the employee himself admitted in his arbitration evidence that he was not a chartered accountant, did not hold a B.Com from a South African university, and did not hold an MBA from Wits. The employee’s explanation at arbitration was not that the statements were accurate, but that he believed he had equivalent qualifications or recognition of prior learning.

The disciplinary charge formulated by the employer was that the employee committed gross dishonesty in that on his CV submitted for the position of financial manager he indicated that he was qualified as a chartered accountant (SA) and that he confirmed this in the interview with the panel on 26 November 2009. The employer’s evidence (particularly from Mr Chitenhe, the CEO and an interview panel member) was that the recruitment process was competitive, that the employee’s CV was before the panel, that it was taken at face value, and that the interview scorecard recorded high scores for qualifications and included annotations that the employee was “financially qualified and experienced” and a “chartered accountant”. The employer’s evidence was that the purported chartered accountant status was a factor influencing the appointment decision, even if not a formal requirement for the role.

There was, however, a dispute about the character of the meeting of 26 November 2009. The employee denied that he applied for the financial manager position or that the meeting was an interview for that position, though he conceded he attended a meeting that involved discussion of his experience and that he had his CV and qualifications with him, which he said he handed to HR. The commissioner later relied on a broader narrative suggesting the dismissal was connected to an attempt to force retirement; the employer disputed this and explained that the issue came to light when the CV was found and investigated in the course of the later contract discussions.

A further relevant factual feature was that after appointment the employee drafted his own job description for financial manager, recording the required qualification as a “B.Com degree or relevant qualifications”. In addition, the employee adopted a position that the employer’s concerns were “stupid little things”, which the Labour Court treated as demonstrating an absence of remorse.

3. Legal Issues

The central legal question was whether the commissioner’s finding that the employee’s dismissal was substantively unfair was one that a reasonable decision-maker could reach on the evidence, applying the review standard in a section 145 LRA review informed by the reasonableness threshold articulated in constitutional and Labour Appeal Court authority.

Within that overall enquiry, the review raised a focused controversy identified by the Labour Court: whether it was reasonable for the commissioner to find that the employee was not guilty of dishonestly misrepresenting his CV (or, in effect, that dismissal was not justified despite the misrepresentation). The dispute accordingly concerned the application of legal standards of review and substantive fairness to the factual record, rather than a pure question of law detached from the evidence.

The court also had to consider whether certain subsidiary contentions advanced for the employee could sustain the award, including whether the employer had proved that the employee was not “qualified” to be a chartered accountant (as distinct from being registered), whether the employee “confirmed” the CV contents during the interview, and whether the alleged misrepresentation was material given that chartered accountant status was not an express requirement for the job.

4. Court’s Reasoning

The Labour Court approached the matter on the basis that the decisive enquiry on review was whether the commissioner’s outcome—substantive unfairness and compensation—was reasonable. The court identified the commissioner’s reasoning as unclear, but extracted its main thrust: that the dismissal was a sham intended to force retirement and that the CV misrepresentations were either not material, were neutralised by equivalent qualifications, or did not warrant dismissal when mitigation was considered.

On the employee’s primary submission that he was technically not guilty because the employer had not shown he was not “qualified” to be a chartered accountant, the Labour Court rejected the argument as unsustainable. It held that it was not credible to contend that the employee was “qualified” as a chartered accountant where, among other things, he had not passed the relevant board examination and was not registered with the appropriate professional body. The court also rejected the contention that the employee had not “confirmed” his CV in the interview, reasoning that handing in the CV at or before the interview constituted confirmation of its content for purposes of the misconduct charge as formulated.

On the question of materiality, the Labour Court held that the evidence—particularly the CEO’s testimony and the interview scorecard—demonstrated that the claimed chartered accountant status was a material factor in the appointment decision. The court further reasoned that even if chartered accountant status was not a strict job requirement, that did not mitigate the dishonesty inherent in claiming to hold such a qualification. The dishonesty was treated as the gravamen, rather than the degree to which the misrepresentation could be shown to be strictly determinative of appointment.

The court addressed procedural objections raised in argument, including alleged failures to cross-examine and the scope of the employer’s pleaded review grounds. It found that the employee had been cross-examined on material issues and that the employer’s review grounds, though brief, were sufficiently framed to permit an attack on the reasonableness of the award’s outcome.

Turning to the substantive reasonableness of the award, the court characterised the employee’s conduct as manifestly gross dishonesty, emphasising that he misrepresented himself as a chartered accountant and also misrepresented having a B.Com and an MBA. The court also treated the employee’s stance during evidence as aggravating because it demonstrated an absence of remorse. On this footing, the court found that dismissal was “patently warranted”, and that a finding of substantive unfairness could not be sustained by a reasonable commissioner on the record.

In reinforcing this conclusion, the Labour Court relied on three Labour Appeal Court decisions it considered directly relevant. It referred to SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2442 (LAC) for the proposition that it is grossly unreasonable to reinstate an employee into a position where honesty is paramount when the position was secured through false statements, and that reinstatement or re-employment in such circumstances cannot be right and proper. It relied on Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC) as authority that even if a misrepresentation may not have induced appointment, it does not detract from the initial dishonesty, which underpins substantive fairness of dismissal. It further relied on G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC) for the approach that dishonesty in securing employment, coupled with lack of remorse, can justify dismissal even where a lengthy period has elapsed and the employee has rendered long service; concealment over time does not negate seriousness.

The Labour Court then tested each of the commissioner’s key findings (as distilled by the court) against the evidence and principles. It found the “sham retirement” theory unreasonable because it could not be reconciled with the unchallenged evidence explaining how the qualification issue came to light, and because the seriousness of the misconduct objectively supported dismissal. It found the commissioner’s view that the misrepresentation was not material to be unjustified on the evidence, given the interview scorecard and testimony. It found the “equivalent qualifications” reasoning to miss the point because the misconduct was the making of false statements about qualifications, and because any supposed equivalence did not address the claim to be a chartered accountant. Finally, it regarded the commissioner’s apparent sanction evaluation as unreasonable in light of the seriousness of dishonesty and the approach in the cited Labour Appeal Court decisions.

On remedy, the parties agreed that if the award was reviewable the Labour Court should finally determine the dismissal dispute. Given its conclusion that the commissioner’s decision was unreasonable, the court substituted the outcome by determining that the dismissal was substantively fair.

On costs, the court declined to award costs against the employee, reasoning that it would not be just and equitable to hold the employee responsible for the commissioner’s unreasonable award, despite the employee’s unsuccessful opposition to the review.

5. Outcome and Relief

The Labour Court reviewed and set aside the commissioner’s arbitration award dated 30 April 2014.

The court substituted the award by declaring that the employee’s dismissal by the employer was substantively fair.

No order as to costs was made.

Cases Cited

Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC)

SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2442 (LAC)

Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC)

G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC)

Legislation Cited

Labour Relations Act 66 of 1995, section 145

Basic Conditions of Employment Act 75 of 1997 (referenced in relation to notice provisions)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Court held that the commissioner’s conclusion that the dismissal was substantively unfair was unreasonable on the evidentiary record. The employee had dishonestly misrepresented that he was a chartered accountant (South Africa) and further misrepresented additional qualifications, and this dishonesty was sufficiently serious to justify dismissal. The commissioner’s findings that the dismissal was a retirement-driven sham, that the misrepresentation was not material, and that purported equivalent qualifications negated misconduct were each found to be unsustainable. The award was set aside and replaced with a finding that the dismissal was substantively fair, with no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that a section 145 review ultimately asks whether the arbitration outcome is one that a reasonable decision-maker could reach on the material before the commissioner, consistently with the review standard associated with Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC).

It applied the principle that dishonesty in the process of obtaining employment, particularly through false statements in a CV or application documents, is serious misconduct going to the heart of the employment relationship. In this context, the court treated the act of submitting a CV containing false qualifications as a confirmation of its content during the recruitment process.

The judgment further reflected the principle, drawn from Labour Appeal Court authority, that the substantive fairness of dismissal for CV dishonesty does not necessarily depend on proving that the misrepresentation was a formal job requirement or the sole determinant of appointment. The dishonesty itself is central, and an attempt to rely on “equivalent” qualifications does not neutralise the falsity of a specific claim to hold a particular qualification.

It also applied the principle that an employee’s absence of remorse aggravates dishonesty and that the passage of time or long service after concealment of the dishonesty does not, without more, negate the seriousness of the misconduct once discovered, as illustrated by the reliance on G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC).

LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291; [2017] 12 BLLR 1259 (LC) ; (2017) 38 ILJ 2787 (LC) (8 August 2017)