Chief Operations Officer at SABC, Hlaudi Motsoeneng, was revealed by the Public Protector to have lied about having a matric. Does falsifying or misrepresenting your professional qualification amount to fraud? Is it grounds for immediate dismissal? To answer the question and comment from the labour and employment law perspective, Patrick Deale joins Kiemo Cummings on Cape Talk.
Interview Source: https://soundcloud.com/primediabroadcasting/falsifying-qualifications
Kiemo Cummings (Cape Talk):
But this is an issue that got a lot of people talking yesterday, and that certainly will have people talking throughout the week and maybe even next week because the Public Protectors’ now once again going to get involved.
Does willfully falsifying or misrepresenting your professional qualification amount to fraud?
That is my key question this morning. The issue is under the spotlight again after the Minister of Communications and the SABC Board appointed the former Acting Chief Operations Officer Hlaudi Motsoeneng as now permanent Chief Operations Officer – despite the Public Protectors report finding that he had lied about having a matric. Now, the position required him to have a matric. The Public Protector concluded that his appointment was irregular and that he needs to be replaced
Patrick Deale is a labour law specialist. Patrick, thank you very much for your time this morning.
Patrick Deale (Deale Attorneys):
My pleasure, good to talk to you.
Good to have you on. I think let’s go back to my initial question: If I lie about having a matric, I don’t have a matric. I work in public service or anywhere else. I make loads of money, right? Am I a fraud?
Yes, you are.
So, I can be criminally charged for fraud?
Well, in the workplace, in the working relationship, it is fraudulent. It is an act of fraud between two citizens, an employer, and an employee, to make a misrepresentation to defraud someone to get a benefit. Intentionally misrepresenting a fact, in this case about qualifications to get a benefit that that person acted upon to its detriment, and so, that is fraud, yes.
So, Hlaudi Motsoeneng, as it stands, looking at the Public Protectors report, could be theoretically charged with fraud in a court of law?
Theoretically, yes. So, in addition to that, it undermines the fundamentals of the working relationship on the basis that he has undermined the core thing that holds any employment relationship together. And that is the element of trust.
Is this commonplace? People lying, blatantly lying, about things such as matrics, etc.?
Unfortunately, it happens often. And in fact, there’s an industry, that sort of a sub-industry that operates in a sense producing false certificates on the one hand – and a counter industry that is designed to detect them. It’s the most extraordinary sort of almost underground situation that operates. And it is because, you know, there’s no justification for it, people need the qualifications to get a decent foot on the wrung in the work ladder and they do things that are wrong and are fraudulent. To get the job, they will do anything.
So, you get someone who represents him or herself as an absolute fraud. But they do the job and they apparently do a good job and companies go, ‘Oh, well. Okay. We’ll keep you.’
I think it’s a problem because once you have committed an act of dishonesty, what we’re looking at here is dishonesty. If I say to you, I have a qualification, I have matric, or I have an LLB, and on that basis you hire me, I have been dishonest to you. And you have trusted me and now it turns out that there was no basis for you trusting me. And that just severs the relationship. So, no matter how long after the event it takes, the issue of trust still remains.
You can have a friend, who you’ve been a friend of for 20 years, and discover that that friend has betrayed you ten years ago about something and it creates that element of doubt about the person. If he’s done it once, could he do it again? How often has he done it since then? And so, it becomes a pervasive sense of distrust about the person. And that is the key element that you need in the employment relationship to hold it together. And I don’t think it’s fixable unless there’s some really, you know, outside left field explanation for why he did it in the first place.
You put it very nicely. And in order for an employee or employer to hold on to someone like that, other forces obviously would have to be in play, but I won’t get your comments on that; I’ll make that particular assertion. But the labour law when it speaks to this particular type of issue: Can you do immediate dismissal?
Well, you need to go through a procedure, of course. You need to listen to all the facts. and if the facts stack up in the sense that he made a fraudulent misrepresentation about his matric qualifications, and he’s guilty, then you listen to mitigating and aggravating factors. And you know, one of those mitigating ones is, ‘Well, it happened a long time ago. And look at my sterling performance over the years. And I’ve never done anything distrustful or dishonest in the past.’
That is one side versus the other: Listen, one dishonesty is always dishonesty – particularly as it’s discovered. You haven’t come forward and sort of confessed to it. You have been found out as a skeleton in the cupboard, as it were. And I think that is a far more aggravating factor than the mitigating, which would then answer your question: I think justify dismissal.
Patrick Deale, thank you very much. Very succinct. Labour law specialist with Deale Attorneys. Great having you on the show.
End of the interview transcript.