Specific job requirements demand that the candidate possess a particular degree or qualification. What can an employer then do if it is discovered, after the appointment, that the qualification is fake or has been forged by the employee?
Before answering this question, students and job seekers should be aware of the new National Qualifications Framework Amendment Act of 2019 (NQFAA), signed by President Cyril Ramaphosa, which means prospective students or job seekers could face up to five (5) years in jail for misrepresenting their qualifications. Under the new law, lying about your qualifications on LinkedIn, Facebook, or Twitter platforms could also lead to jail time.
The question is, then, what can an employer do about it?
In Umgeni Water v Naidoo and Another (11489/2017P)  ZAKZPHC 80 (15 December 2022), Umgeni Water appointed Sheldon Naidoo in a graduate program in 2008, they accepted his qualifications without demur and did not validate them. However, in 2016, things were done differently, and qualifications had to be verified. That year, Naidoo applied for an internal vacancy as a Process Technician, and his chemical engineering qualification he used to get into the graduate program had to be verified. It was then discovered that he had forged his qualification. He resigned in November 2016 after being asked about his qualifications’ legitimacy.
When the fraud was discovered, Umgeni Water instituted a claim of R2 203 565.04 against Naidoo for the money he earned while he worked there. Umgeni Water said it would not have employed Naidoo in its graduate program in 2008 if it knew he did not have an engineering degree. It said the program was designed for and intended for graduates.
The court concluded as follows:
“On the evidence led before me, there was no basis upon which the equitable remedy of restitution should be withheld from the plaintiff. The first defendant must be ordered to disgorge what he received from the plaintiff arising out of the fraud that he perpetrated on it. If the first defendant is of the view that he is entitled to compensation for unjust enrichment from the plaintiff, he is free to establish that claim in appropriate legal proceedings.”
The following order was granted:
1. There shall be judgment in favour of Umgeni Water against the Naidoo for payment of the amount of R2 203 565.04;
2. Interest shall run on the judgment amount at the prescribed legal rate of interest from the date of demand to the date of final payment;
3. It is declared that Umgeni Water is entitled to execute this judgment against Umgeni Water’s provident fund administered by the Umgeni Water provident fund;
4. Naidoo shall pay Umgeni Water’s costs on the scale between attorney and client.
Before appointing and registering any individual, employers, education institutions, skills development providers and quality councils must verify whether the qualifications or part qualifications of such person are registered on the national learners’ records database.
The qualification must be referred to the South African Qualifications Authority (SAQA) for verification if it needs to be registered. SAQA will conduct the verification for a prescribed fee. If employers don’t have such verification processes in place, it is of the utmost importance to implement same immediately. If it is discovered that some employees faked their qualifications, the employers have the right to institute a claim as per the above-mentioned case law.
Article By: Tammy Koekemoer
Dispute Resolution Official – CEO Bloemfontein