From fraud to fortification: Strengthening hiring processes to prevent the need to litigate

By verifying paperwork throughout hiring, employers may save themselves expensive litigation towards staff who submit fraudulent credentials to safe jobs and promotions

Because the enactment of the Nationwide {Qualifications} Framework Modification Act 12 of 2019 (NQFA) in 2019, employers have needed to considerably bolster their qualification and screening processes throughout hiring.  The important thing adjustments to the NQFA embrace legal sanctions for individuals who misrepresent their {qualifications}.  The NQFA additionally obliges employers to authenticate qualification(s) offered to them by potential staff.  Learn extra in regards to the amendments to the NQFA right here.

Though this represents a victory for employers who battle with candidates and staff who’ve misrepresented their {qualifications}, you will need to make sure that employers conduct correct validation and authentication processes to keep away from pointless authorized battles.

Umgeni Water v Naidoo and One other illustrates why employers ought to correctly verify {qualifications} and display their staff.  On this case, Mr Naidoo was employed by Umgeni Water, which is chargeable for bulk water distribution.  He claimed to have a BSc diploma in Chemical Engineering, however this was not validated by the employer when he began his job in 2008.

When Mr Naidoo utilized for a Course of Technician place in 2016, Umgeni Water referred the {qualifications} of all candidates for verification.  Mr Naidoo’s {qualifications} didn’t stand up to scrutiny – there was no file of his receiving a BSc.  When known as to supply proof of his diploma, he was unable to take action, and later he resigned, citing an sickness which he mentioned was life-threatening.

Umgeni Water instituted civil proceedings, searching for the reimbursement of all salaries paid to Mr Naidoo based mostly on his fraudulent misrepresentations.  The employer mentioned that hundreds of thousands of individuals in KwaZulu-Natal trusted it for the secure provide of water.  This necessitated using certified staff who inter alia carry out calculations to find out which chemical substances, and in what amount, needs to be added to the water.  Any errors may have severe penalties for the overall populace.

The Excessive Court docket thought-about whether or not the contract entered into between Umgeni Water and the worker was void or merely voidable.  It held that the contract was voidable on the occasion of the employer.  If the employer had identified that the worker didn’t have the required college diploma, it will not have appointed him to any place.  The Court docket present in favour of Umgeni Water and issued a judgment towards Mr Naidoo to repay ZAR 2 203 565.04, which might be executed towards his provident fund.  It reasoned that the employer was capable of show the alleged fraud, and Mr Naidoo supplied no proof {that a} restitution order can be unjust.

Although brazen, these details will not be distinctive and are much like the circumstances in Passenger Rail Company South Africa v Mthimkhulu when a former govt worker was ordered by the Excessive Court docket to pay damages of ZAR 5 771 854.39 in 2019 to his former employer for fraudulently misrepresenting {qualifications}.  Learn our alert on that case right here. The employer pursued a legal case towards the previous worker.  In January 2023, the Johannesburg Specialised Industrial Crimes Court docket discovered him responsible of fraud for submitting fraudulent {qualifications} to his employer and forging a suggestion of employment to induce a wage enhance.

The instances cited above centre on fraudulent {qualifications}, however there may be one other danger: cast or fraudulent work permits and id paperwork proffered by candidates and staff.  In June 2022, the Division of House Affairs (DHA) Counter Corruption Department, working with the Hawks, revealed that corrupt officers on the DHA had offered work permits and id paperwork fraudulently.  In some situations, these invalid paperwork had been offered to candidates who believed they had been issued lawfully.  In consequence, overseas nationals could possess fraudulent {qualifications} or work permits with none information of wrongdoing.  This discovering is especially regarding for employers in view of the hefty penalties for non-compliance with labour and immigrations legal guidelines on the employment of overseas nationals.

In removing corruption, employers’ pursuit of staff who submit fraudulent paperwork to safe employment or enhanced advantages by instituting civil litigation, freezing pension advantages, and initiating legal instances is laudable.  Nonetheless, employers would save money and time by incorporating a verification course of into hiring and sure promotions’ processes.  Employers shouldn’t take paperwork at face worth, fairly be secure and authenticate.