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Nicolene Erasmus and André Claassen

 

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 heavy 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. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references
  • 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?” and
  • “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.

 

While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstances. 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 fire 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, in the case of Evans vs. Protech (2002 7 BALR 704) the employee had, prior to employment, informed the employer that she 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 her qualifications during the job application stage.

 

However, in the case of NUMSA obo Engelbrecht vs. Delta Motor Corporation (1998 5 BALR 573) the CCMA found the dismissal of Engelbrecht to be unfair despite the fact that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.

 

It is not only job applications that can result in misrepresentation. In the case of PSA obo Mojake vs. SARS (2005, 12 BALR 1308) the employee worked as an auditor for SARS. She was dismissed for having written to SARS a letter purporting to come from a consumer organisation. The letter requested SARS to cancel garnishee orders issued against Mojake. The CCMA agreed that such misrepresentation was deserving of dismissal but nevertheless ordered the employer to pay the employee compensation because it had breached its own disciplinary procedure in the process if dismissing Mojake.

 

In Grobler ./ Anglo Platinum Frank Shaft [2008] 2 BALR 147 (CCMA), the applicant applied for employment, his application was successful and he was appointed. The applicant was previously employed by Impala Platinum Rustenburg. Whilst in that employment, the applicant was charged with gross negligence in the performance of his duties, resulting in his dismissal from Impala Platinum. The applicant, after his dismissal, started and managed his own business for approximately 12 months.  The applicant later approached an employee of Anglo Platinum regarding the possibilities of any employment opportunities there.  The employee who was approached asked the applicant for a copy of his curriculum vitae in order to give it to the mine overseer. The applicant did mention to this employee that he spoke to, that he was previously dismissed from Impala Platinum. The employee apparently passed this information to the mine overseer. Following an interview, the applicant was informed that his interview and subsequent application for employment was successful. After signing an offer of employment for the position of shift supervisor, the applicant continued to attend the induction course, and after successfully completing that course he returned to his specific shaft. During this time and whilst attending to administration requirements specifically in relation to the applicant's employment, it was discovered that the applicant was previously dismissed from Impala Platinum. The applicant was informed that his employment would not be processed and that he must report to the human resources Department. The applicant was informed that his appointment was withdrawn due to the fact that he failed to disclose important information in respect of his disciplinary record with the Impala mine. The applicant then referred a dispute of unfair dismissal to the CCMA. A witness for the respondent testified that at the interview, he did ask the applicant the reason why he had left his previous employment, and the applicant had answered that he was looking for better opportunities. Under cross-examination, witnesses for the respondent confirmed that the applicant had the opportunity to disclose the fact that he was dismissed from Impala, but failed to do so. For various reasons, it was held that there were procedural defects regarding the procedure followed by the employer prior to dismissing the applicant. In other words, the arbitrator ruled that the dismissal was procedurally unfair but substantively fair. The substantive reason for the dismissal was a fair reason - namely the reason for the dismissal was because the applicant had failed to disclose vitally important information regarding the termination of his employment with his previous employer.

 

Despite the fact that the arbitrator found that the dismissal was procedurally unfair, he did not award any compensation to the applicant for procedural unfairness. This was because the procedural defects brought about by the employer, when seen against the fact that “the applicant himself acted unjustly and incorrectly by failing to disclose important and relevant information that would, in all probability, have impacted negatively on the decision of the respondent to appoint the applicant,” is sufficient to render any procedural defect to be not unfair per se. In other words, said the arbitrator, against this background the applicant is the architect of his own fate, and therefore is not entitled to any compensation.

 

This matter must have consumed a large amount of the employer's time and resources, considering the interview process, the administrator of procedures to be adhered to in employing somebody, then the dismissal, CCMA conciliation, CCMA arbitration and probably a bit more.

 

The decisions in these cases mean that employers must: 

 

  • ask applicants why they left from 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.
  • 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 EEA applies to employees, employers and applicants for employment. This 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 of 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 such inherent requirement associated with the position. In such cases the applicant may have a case of unfair discrimination.

Medical testing of applicants are 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.

 

For more information contact

 

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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