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Employment and Labour Law

You Can (and Should) Both Discipline and Prosecute Thieving Employees

By | Criminal Law / Crime, Employment and Labour Law

“It’s the profile of the most trusted individual, in a position of trust, like an accountant or bookkeeper. They usually never take leave, and someone who never allows anyone access to their system would go to the length of taking their laptops with them while they are on holiday so that they can continue working. They are usually caught in the moment of forced absence from work.” (Specialised Commercial Crimes Court as reported by News24)

Our courts report a surge in serious cases of theft from employers by their most trusted employees – often bookkeepers and accountants. The greater the trust placed in these dishonest individuals, the more they steal and the longer they get away with it.

Particularly in more serious cases, employers should lay criminal charges as well as instituting disciplinary proceedings. Criminal courts are imposing hefty deterrent sentences, and the Labour Court has confirmed that laying charges does not prejudice the simultaneous disciplinary process.

Minimum sentences apply

Firstly, minimum sentencing provisions apply when large amounts have been stolen. Even first offenders must be sentenced to a minimum of 15 years’ imprisonment for any fraud or theft involving more than R500,000 (R100,000 for persons acting together or R10,000 for law enforcement officers) unless “substantial and compelling circumstances exist which justify the imposition of a lesser sentence”.

Let’s look at some recent cases –

  • 50 years for a R537m theft: Over some two decades of employment in a position of trust as an accountant, an employee admitted to 336 counts relating to thefts totalling an astonishing R537m. She had tried to cover up with fraudulent VAT claims and although her lavish lifestyle (she spent R5m on one specific day) attracted attention, it seems that it was only an anonymous tip off that eventually led to her detection and arrest. She was sentenced by a Specialised Commercial Crimes Court (SCCC) to 50 years behind bars.
  • 10 years for a R13.4m fraud: A creditor’s clerk, once again in a position of trust, pleaded guilty to 972 counts of fraud totalling over R13.4m and stretching over 9 years, only discovered when she went on sick leave. The mitigating factors in her case (she has health issues and is 65 years old) led the High Court to reduce her 15-year sentence to a below-the-minimum 10 years.
  • 18 years for a R14m theft: A financial manager stole over R14m, leaving the couple who had trusted him with their finances without their life savings (including a cancer diagnosis payout) and on their knees financially and emotionally. The Court’s sentence of 3 years more than the minimum reflected its finding that the aggravating factors justified removing the manager from society, despite his gambling addiction and previous clean record.
  • 15 to 30 years for a R52m fraud? A trusted store accountant “viewed as a brother” by its traumatised owners (one of whom even contemplated suicide), admitted to two counts of fraud totalling R52m as a result of his gambling addiction. He will only be sentenced in March, but it seems from media reports that he is unlikely to receive less than the minimum 15 years’ imprisonment per count, possibly to run concurrently.
The Labour Court confirms you can do both

A municipal manager with 15 years’ service was criminally charged with very serious frauds. He asked the Labour Court to stop his employer’s disciplinary process against him, arguing that in defending himself at the disciplinary hearing he might have to give self-incriminating evidence.

The Labour Court disagreed, finding that the employee had several layers of protection available to him in the criminal trial, and clearing the employer to proceed with the disciplinary hearing simultaneously. In fact, said the Court, “It is tantamount to an abuse of court process by a person holding a managerial position using court processes to prevent his employer from subjecting him to a disciplinary process under the guise of protecting his constitutional rights.” It accordingly ordered him to pay all costs on the punitive attorney and client scale – a very unusual censure in labour law matters where both sides are normally left to cover their own costs.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Moonlighting Without Consent is Misconduct – A Firing Offence

By | Employment and Labour Law

“…moonlighting as a matter of principle is unacceptable…” (extract from judgment)

Up to a quarter of all middle-class South Africans are reported to “moonlight”, that is to run a part-time side hustle or side business in addition to their full-time jobs. Some, it seems, go one step further and manage to hold down two full-time jobs simultaneously. No doubt the pandemic-accelerated increase in remote working has enabled that trend as much as financial pressures on employees have fuelled it.

But, as the Labour Court has once again confirmed, moonlighting without permission risks instant dismissal.

“Juggling two jobs” leads to dismissal after an anonymous tip off
  • A “highly qualified and academic” employee held down two part-time lecturing jobs, one with a university. The university had consented to this arrangement, so all was well at that stage.
  • However, she thereafter elected to resign from her second part-time job and to take up full-time employment as a lecturer “in a senior position of trust and responsibility” with the university at an annual salary package of R787,520. Almost immediately after that she took on another full-time job as an accounts director at a data consultancy, this time at an annual salary of R1,100,004. Critically, this time she did so without seeking the university’s authority to do so.
  • We will never know whether or not the employee might perhaps have got away with juggling these two full-time jobs for any length of time, because after only a month an anonymous tip-off put an abrupt end to her scheme.
  • The university convened a disciplinary hearing and she was dismissed after being found guilty of gross misconduct for taking up a second full-time position without the university’s knowledge or authority, in breach of her duty of good faith to the university and of its “Policy on the Declaration of Interests”.
  • She referred the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration) which held her dismissal to have been both substantively and procedurally fair – which decision she referred to the Labour Court on review.
  • Unimpressed with the employee’s defence that she could manage the two positions, that she did not think it would prejudice the university, and that she saw no conflict of interest, the Court agreed that she had been guilty of “extremely serious misconduct” and upheld her dismissal.
  • Rubbing salt into her wounds, the Court ordered her to pay the university’s legal costs (unusual in labour law matters).
Moonlighting – a breach of duty and good faith

The Court’s findings apply to all employment contracts, even those without specific moonlighting policies in place, because of the breach of trust inherent in unauthorised moonlighting. To quote the Court in bullet point form –

  • “In simple terms, moonlighting as a matter of principle is unacceptable, and a breach of an employee’s fiduciary duties towards the employer.
  • It must always be the sole prerogative of an employer to decide whether to allow this to take place, and also on what terms it may be allowed.
  • Nothing can be assumed by the employee. That is why it has to be critical that full disclosure be made by the employee to the employer beforehand, so the employer can exercise its prerogative in an informed manner.”
  • To make disclosure to an employer after the fact effectively confronts the employer with a fait accompli, and cannot undo the breach of the duty of good faith that has already taken place.”
Is dismissal always appropriate?

To quote the Court again: “It would in my view be difficult for an employer to re employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”

In this case the employee’s consistent denials of wrongdoing left the university, said the Court, with no alternative but to terminate her employment. But clearly dismissal will not automatically be appropriate in all cases, particularly where it is possible to re-establish trust in a case of genuine remorse. Every case will be different and specific legal advice is essential.

Consistency is critical

Employers need to be able to justify any inconsistency in approach to similar misconduct by other employees. In this case the employee’s “consistency challenge” was groundless and rejected, but it will always be a factor in assessing whether or not dismissal is appropriate.

A final note for employees

If you need or want to earn some extra cash on the side, tell your employer and get prior consent (in writing). Or risk dismissal.

And a final note for employers

Follow the principles set out above and think of putting something into your employment contracts to cover all possible “conflict of interest” situations including moonlighting. With the complexity of our labour laws and the downsides of getting it wrong, specific legal advice is essential.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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The New Law on Parental Leave – A Simple Summary for Employers and Employees

By | Employment and Labour Law

“The crux of the case is about unequal treatment of persons. (Extract from judgment below)

The recent High Court judgment which declared unconstitutional differences between maternity, paternity, parental, adoption and surrogacy leave has received a lot of media attention, much of it focusing on the reasons for the decision – but what has actually changed on a practical level for employers and their employees?

In summary, the Court has given Parliament two years to remedy those sections of two Acts – the BCEA or Basic Conditions of Employment Act and the UIF Act – that discriminate unfairly between mothers and fathers and between different sets of parents on the basis of whether a child was born of the mother, conceived by surrogacy or adopted.

Employers and employees – what you need to know

The matter now goes to the Constitutional Court for confirmation of the declaration of invalidity and of the Court’s interim order that “…all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.”

To break that down, all parents (regardless of gender or category) will, subject to confirmation by the Constitutional Court, be entitled to at least four consecutive months’ leave – what until now has been described in the BCEA as “maternity leave”.

To break that down simply –

  • Single parents of any gender will be entitled to the full four months’ leave.
  • A pair of parents will be entitled to the same leave, but they must share it between them They can choose how to take the leave – either one of them can take the whole period, or they can take turns taking leave. Both parents’ employers must, before the child’s birth, be notified in writing of the parents’ decision and of the periods to be taken by each parent.
  • Adoptive parents will be entitled to the same leave when adopting children under two years of age.
  • Surrogacy – the same leave will be available to a commissioning parent or parents (a “commissioning parent” is a person who enters into a surrogate motherhood agreement with a surrogate mother).
If it’s unpaid leave, a UIF claim may help…

The BCEA provides job security by obliging employers to grant parental leave rather than lay off new parents, but it does not force employers to make it paid leave. It will be unpaid unless your particular contract of employment specifies that it will be paid.

That’s where the UIF (Unemployment Insurance Fund) comes in, with its provision of “maternity benefit” claims. These will be available to all qualifying parents who are contributors to UIF.

Employers – take advice on how to update your leave policies to comply with these anticipated new provisions.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Did You Know that CV Liars Now Face Jail Time?

By | Employment and Labour Law

“Fraud is a cancer that is crippling our country” (Supreme Court of Appeal in 2019)

An all-too-common scenario in these times of high unemployment is job applicants who, desperate to be hired, lie about their qualifications on their CVs. Recent high-profile stories of fake doctors and the like are no doubt only the tip of the iceberg when it comes to this growing problem.

And of course, the consequences for any business hiring such a candidate can be extremely serious. You face loss of reputation, loss of clients, dangerous workplaces where safety issues are at stake, and potential liability for any damage caused by the under-qualified employee.

The new offences

But there is help at hand! All employers, employees and jobseekers need to know that anyone lying about their qualifications now faces heavy fines and up to 5 years’ imprisonment.

That’s in terms of the newly operational National Qualifications Framework Amendment Act, which makes it a criminal offence to “falsely or fraudulently” claim to be holding a qualification or part-qualification from any educational or skills development provider, including a foreign institution. Fraudulent claims needn’t necessarily be in the form of a CV – any deliberate “falsification and dissemination or publication” of false qualifications is now criminalized, so posting fake matric certificates or degrees on social media for example would now be a criminal offence.

What you should do as an employer
  • If a job seeker lies

    Of course, prevention is always better than cure, do your due diligence upfront – verify all qualifications claimed, speak personally to references, query inconsistencies or gaps in CVs and so on.

    You naturally won’t hire an applicant who turns out to be a liar but think of going one step further – lay criminal charges! It may seem overkill but the applicant has put your business at risk just by claiming the false qualification, and the best protection you can have from future attempts to defraud you in this way is to build a reputation for taking firm action against cheats.

  • If an existing employee lies

    If on the other hand you find out that an existing employee has been guilty of CV fraud, either to get the job initially or to qualify for a benefit such as a promotion, you have a range of options available to you –

    • Lay charges: Send out a clear message: “Don’t mess with us!” by pursuing criminal charges, either as above if it’s qualification fraud or under our general criminal laws for other types of fraud. A recent example is provided by the case of a fake radiographer who misrepresented her qualification to get employment and has been sentenced to 2,000 hours’ periodical imprisonment.
    • Disciplinary action: You should also consider disciplinary action against the employee, with dismissal a distinct possibility in appropriate cases. Note that specific legal advice is essential here to get it right.
    • Claim damages: You may well also have a claim against employees for any losses flowing from their fraud. For example, the High Court recently ordered an employee who had claimed to hold what turned out to be a fake degree to repay everything he had earned back to his employer – over R2.2m. Moreover, the Court authorised the employer to execute against the employee’s provident fund, and that’s really going to hurt the fraudster’s retirement plans. Note that pension and provident funds are normally protected from creditors but not from claims for “any damage caused to the employer by reason of any theft, dishonesty, fraud or misconduct”. As a final mark of its displeasure, the Court ordered the employee to pay costs on the punitive attorney and client scale.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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A Dishonest “I’m Too Sick to Come to Work” Excuse is a Firing Offence

By | Employment and Labour Law

“…an employment relationship is predicated on trust” (Extract from judgment below)

Our courts have once again confirmed that dismissal is justified when employees lie about their state of health in order to get sick leave.

A recent Labour Court case provides a perfect example.

Too sick to work, but caught on TV at a protest march
  • An employee called in sick for a few days, and to support his claim of illness produced a medical certificate of sorts (albeit a meaningless one, certifying the nature of illness as being “Absence due to medical condition”).
  • Unluckily for the employee, his supervisor happened to be watching the evening news on TV and what did he see on the screen but his “too ill to work” subordinate participating in a protest march, singing and clapping his hands.
  • Long story short, the Labour Court upheld his dismissal for “gross dishonesty” in breach of the trust relationship that underlies all employer/employee interactions.
  • In doing so the Court found on the facts that the employee had clearly been malingering in order to attend the protest, noting that an employee claiming to be too ill to work must prove it. In that regard the supposed medical certificate just didn’t cut it without being confirmed on affidavit.
Important takeaways for employees (and their employers)
  • Falsely claiming sick leave fundamentally breaches the employer/employee trust relationship and in appropriate cases our courts will not hesitate to uphold dismissal even for a first offence.
  • If queried, it is for the employee to prove that an illness genuinely prevented attendance at work.
  • A sick note or medical certificate should be meaningful as to the nature of that illness and the issuing medical practitioner may have to confirm its contents in an affidavit or under oath.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Understanding Your Legal Obligations as an Employer of Domestic Workers

By | Employment and Labour Law

South Africans employ an estimated 900,000 domestic workers. They assist us with a range of tasks that keep our homes running smoothly – from cleaning and gardening to cooking and childcare, their contributions are invaluable. However, as an employer, it is vital that you recognise and fulfill your legal obligations in order to establish a fair and lawful working relationship.

Compliance with these legal requirements has become increasingly important as law enforcement authorities become more and more vigilant in ensuring adherence, so without further ado let’s delve into the details of what the law expects from you.

Firstly, what do we mean by “domestic worker”?

In the context of this article, domestic workers refer to individuals who work in your home, including gardeners, cleaners, cooks, nannies, caregivers (to children, the aged, the sick, the frail or the disabled), au pairs, chauffeurs and the like. Excluded are farm workers and those working less than 24 hours a month for you.

5 key requirements
  1. Employment Contract: It is essential to sign a written employment contract with your domestic worker. This contract should specify important details, including full name and ID number, remuneration, working hours, overtime, leave (annual, sick, maternity, compassionate, family responsibility), and job description (list roles and responsibilities). Having a clearly defined contract protects both of you and ensures a fair working relationship to your mutual benefit.
  2. Minimum Wage: The current National Minimum Wage (NMW) for each “ordinary hour worked” is R25-42. Assuming a work month of 21 days x 8 hours per day, R25-42 per hour equates to R4,270-56 per month. The Living Wage calculator will help you check whether or not you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up to date).
  3. Pay Slips: Every month, you must provide your domestic worker with a written pay slip. The pay slip should include your and your employee’s details, the ordinary and overtime hours worked during the payment period, the applicable rate of remuneration, and any deductions made by you. This document ensures transparency and accountability in the payment process.
  4. UIF Registration: You must register your domestic worker for UIF (Unemployment Insurance Fund) and make monthly contributions. This will provide short-term relief to your employee during periods of unemployment, maternity leave, or illness. Both of you must contribute 1% of wages each month (i.e., 2% in total). Failure to comply is not only unfair to your employee, but it also exposes you to penalties and other legal consequences.
  5. COIDA Registration: Under COIDA (the Compensation for Occupational Injuries and Diseases Act), you must register your domestic worker with the Compensation Commissioner to ensure that your worker (or dependants) is eligible for compensation in case of injuries, disabilities, or illnesses sustained while on duty.

It is crucial to understand that non-compliance with these obligations can lead to severe consequences for you, with the risk of legal disputes, referrals to the CCMA (Commission for Conciliation, Mediation and Arbitration), Labour Court fights, and so on.

Familiarise yourself with your obligations, seek professional guidance if needed (dismissals and retrenchments are particular minefields here!) and prioritise the well-being of your domestic workers to maintain a positive and lawful working relationship.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Overtime: The Importance of Agreements

By | Employment and Labour Law

“…an employer may not require or permit an employee to work … overtime except in accordance with an agreement” (Basic Conditions of Employment Act)

All employers and employees need to know of a recent Labour Court judgment holding that an instruction to work overtime in the absence of an agreement is unlawful.

A lapsed overtime agreement makes dismissal unfair
  • A company’s Site Manager instructed four employees to work overtime to meet production targets but they refused, citing safety issues on the day in question.
  • They were charged with gross insubordination and subsequently dismissed.
  • They took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) to dispute the dismissals, and when the CCMA found that the dismissals were substantively fair, they applied to the Labour Court for review.
  • Although the CCMA commissioner had found that there was a work agreement in place that bound the employees to work overtime as and when necessary, the Labour Court held that the overtime clause in their contracts of employment had already lapsed by the time the instruction was issued.
  • Moreover, on the facts there was no evidence to support any inference of an “implied or tacit” agreement to work overtime on this particular day. Said the Court: “…an agreement [to work overtime] could be inferred only when an employee had actually worked overtime without prior consent.”
  • The Court’s conclusion – without an agreement to work overtime on the day in question, the instruction was unlawful, and the dismissal accordingly unfair.
  • A further finding by the Court, although of practical relevance only to one employee whose agreement to work overtime remained valid, is nevertheless well worth noting: “The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her.” In this case “There was no evidence that the applicant employees acted willfully and repeatedly … Obviously, a progressive disciplinary sanction in a form of a warning or final written warning could have availed.” (Emphasis added)
  • The employer was ordered to reinstate the employees, retrospectively and with full back pay.
The law

Agreement is essential: The BCEA (Basic Conditions of Employment Act) regulates overtime and provides that overtime is voluntary: “…an employer may not require or permit an employee to work … overtime except in accordance with an agreement”. It is up to you as employer to prove that a valid agreement is in place – so whilst a verbal agreement is perfectly fine in practice most of the time, a written agreement will prove invaluable in the event of any uncertainty or dispute.

When overtime agreements lapse: The BCEA also specifies that an overtime agreement “concluded … with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.”

The bottom line

Make sure you have valid overtime agreements in place and renew them if they lapse. As always with our labour laws remember that the complexity and the downsides of getting it wrong make specific professional advice an easy decision.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Effective 1 March 2023: New Earnings Threshold and National Minimum Wage

By | Employment and Labour Law

Employers and employees need to keep an eye on the annual increases in both the National Minimum Wage and the Earnings Threshold, summarised below for your convenience. Both are effective from 1 March 2023.

The National Minimum Wage increase

The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased by 9.6% from R23-19 to R25-42. Workers who have concluded learnership agreements in terms of the Skills Development Act are entitled to a sliding scale of allowances.

Domestic workers

Domestic workers were brought into line with the NMW in 2022, and assuming a work month of 21 days x 8 hours per day, R25-42 per hour equates to R4,270-56 per month. The Living Wage calculator will help you check whether or not you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up to date).

The Earnings Threshold Increase

The annual earnings threshold above which employees lose some of the protections of the Basic Conditions of Employment Act has been increased by 7.6% from R224,080-48 p.a. (R18,673-87 p.m.) to R241,110-59 p.a. (R20,092-55 p.m.).

“Earnings” (for this purpose only) means “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration”.

Some employees enjoy only limited BCEA protection even if they earn below the threshold – notably any “senior managerial employee” (“an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”), any “sales staff who travel to the premises of customers and who regulate their own hours of work” and any “employees who work less than 24 hours a month for an employer”. Take specific advice for details.

The threshold also impacts on some of the protections provided in the Labour Relations Act –

  • Employees earning less than the threshold, if contracted to a client for more than three months through a temporary employment service (“labour broker”) are deemed to be employed by the client unless they are actually performing a temporary service.
  • Fixed-term employees earning below the threshold are deemed to be employed indefinitely after three months unless the employer has a justifiable reason for fixing the term of the contract.

Turning to the Employment Equity Act, employees earning over the threshold can only refer unfair discrimination disputes (other than disputes based on sexual harassment) to the Commission for Conciliation, Mediation and Arbitration (CCMA) with the consent of all parties. Otherwise, they must go to the Labour Court for arbitration.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Suing a Degree-Forging Employee for R2.2m

By | Employment and Labour Law

“Oh, what a tangled web we weave when first we practice to deceive” (Sir Walter Scott, quoted in the judgment below)

It’s a sad fact of life in today’s business world that as an employer you must remain constantly on guard against the dangers of “CV fraud”.

First prize of course must always be prevention – verify all claimed qualifications and work experience, accept nothing on trust. But if you do get caught out, our courts will help you if they can, as witnessed by a recent High Court case.

The “graduate” who forged a B.Sc degree
  • An employee was found to have been employed, and to have been accepted into his employer’s graduate development programme, on the basis of forged qualifications in the form of a forged B.Sc degree (in Chemical Engineering) and a falsified academic record.
  • His fraud was only discovered after some 8 years, and when he resigned (after disciplinary proceedings against him began) his employer reclaimed the +R2.2m it had paid him over the years.
  • The employee objected, claiming that he had provided value to his employer in his work. The Court was unimpressed, no doubt at least in part because of the employer’s evidence that, as it was a bulk supplier of water to millions of people, having an unqualified person working for it (performing calculations on the type and quantity of chemicals to be added to the water) “could potentially have incredibly serious consequences for the general populace.”
“Fraud unravels everything” – goodbye R2.2m and a pension fund

Held the Court (quoting from a well-known English case on fraud): “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” (Emphasis added)

The employee, said the Court, “set out to deceive and wove his web accordingly. He achieved his goal. He has now become entangled in a web that he alone devised and cannot now be heard to complain of the consequences that must follow.”

Not only must he now repay every cent of the R2,203,565.04 he earned through his fraud, plus interest, but his pension benefits (which are normally secure from creditor claims) can be used for the purpose. To rub a final dose of salt into his wounds, he must also pay legal costs on the punitive attorney and client scale – no doubt the Court’s findings as to his untruthfulness as a witness contributing to that result.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Employers: Don’t Miss Your Employment Equity Report Deadline!

By | Employment and Labour Law

Before you close up for the year, remember that if you are a “designated” employer, your Employment Equity Act (“EEA”) Report is due on 15 January 2023.

Failure to comply carries substantial penalties so don’t miss this deadline.

You are likely to be a designated employer if either –

  • You have 50 or more employees, or
  • Your annual turnover equals or exceeds your particular industry’s threshold. See the table below for details.

(Source – Schedule 4 to the Employment Equity Act)

There’s good news for some SMEs in the pipeline

Good news for smaller businesses drowning in red tape it that it seems likely that the threshold test will fall away at the end of September 2023. If you have less than 50 employees, that would let you off the reporting hook from October next year. But for now, if you are in the turnover net, meet the 15 January deadline.

Bear in mind also that all employers, designated or not, must comply with the EEA’s strict prohibitions against unfair discrimination.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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