Recent media reports have, once again, highlighted the potential problem of employees or prospective employees submitting fraudulent qualifications to employers. Scandals involving falsified and misrepresented qualifications are not new, but in this article, we remind employers what their recourse is should they find themselves in this position and what they ought to do in order to mitigate against these risks.

The misrepresentation of qualifications to a potential or existing employer manifests in a variety of ways. In this regard, individuals may claim that they have qualifications that they have only partially completed or claim to have qualifications that they do not possess at all. These claims can sometimes be coupled with forged documents or documents unlawfully obtained through bribery or similar conduct. The question that employers will face in uncovering these sorts of misrepresentations is, what can they do? A question that becomes more difficult if the qualification is not strictly required for the performance of the employee's function.

What is the legal position?

In the context of the employment relationship, trust is the basis and forms the substratum of the employment relationship. Any conduct that constitutes a misrepresentation, at its core, undermines the very essence of trust in the relationship. Employers, upon discovering that an employee has misrepresented their qualifications and/or forged their qualification, directly or indirectly, are entitled to institute disciplinary action.

The Labour Court and Labour Appeal Court have been required to determine whether an employer can fairly dismiss an employee for misrepresenting their qualifications on numerous occasions.

The overwhelming position is that:

  • the misrepresentation of qualifications constitutes dishonesty and is sufficient to warrant dismissal, even if the conduct is discovered sometime later;
  • it is irrelevant whether an employee has rendered satisfactory performance - the test is whether the employee misrepresented possessing the qualification in question; and
  • disclosing the truth after having made the misrepresentation does not absolve the employee from having committed the transgression.

Of course, and aside from the legal considerations, the misrepresentation of qualifications can impact the employer's reputation, especially if the employer conducts its business within a regulated environment. There may be aggravating factors that increase the seriousness of the misconduct linked to reputational or other compliance-related issues, where the qualifications have been used in securing tenders or work or have been represented to regulators, shareholders, investors or other similar stakeholders.

In addition, misrepresenting qualifications also constitutes a criminal offence in terms of the National Qualifications Framework Amendment Act, 2019 ("the Act"). Section 32B(3) of the Act provides that "a person is guilty of an offence if such a person falsely or fraudulently claims to be holding a qualification or part-qualification registered on the NQF or awarded by an education institution, skills development provider, [quality council] or obtained from a lawfully recognised foreign institution."

Furthermore, section 32B(6) of the Act provides that any person convicted of an offence in terms of section 32B(3) is liable to a fine or imprisonment for a period not exceeding five (5) years, or to both a fine and such imprisonment.

What can employers do to prevent the risks associated with misrepresented qualifications?

The age-old adage that "prevention is better than cure" rings true here. Employers should implement proactive measures to mitigate against the risk of misrepresentations through independent and robust screening and verification processes. These checks should not only take place at the commencement of the employment relationship but also during the subsistence of the relationship where the employee is required to obtain additional academic and/or professional qualifications.

When implementing screening and verification procedures, employers should require employees to complete the application and other forms themselves (as opposed to employers completing the forms for the employees) and obtain an undertaking from employees that the information provided is true and correct. These aspects will assist the employer in navigating the common defence of "it was an error in my CV" during any disciplinary proceedings. In addition, employers may want to consider running the pre-employment checks prior to concluding an employment agreement, in order to avoid having to rely on suspensive conditions to terminate employment.

The recent media attention should not only serve as a reminder to employers of the importance of having robust screening and verification processes but should also prompt them to revisit their processes and consider (i) whether they are fit for purpose; and (ii) whether there is a sufficient record and paper trail in the process to prove any case of misrepresentation.

*In case you missed our webinar, Degrees of Truth: fraudulent qualifications, view it here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.