Misrepresentation of Skills or Qualifications

There was a similarly worded section in the repealed Employment Act [Cap47:01]. The leading case on this section was Victor Makwati v Statistics Botswana, which was reviewed in Chapter 7 of Issue Number 34 of Andrew Briscoe’s Botswana Labour Law Review. In this case, the worker had applied in 2004 for employment with the Central Statistics Office which was at that time a department in the Ministry of Finance.

The worker’s letter of application for employment read as follows:

In 2005, the worker was appointed in the department to the post of assistant statistician. To facilitate the process of employment, on the 26 August 2005, he completed a form DPSM 2 for Public Service Appointments. In the form, he disclosed his particulars, work experience and educational background. In the body of the form, there was a portion where he had to disclose his degree, diploma or professional qualification. Herein, the worker stated that:

• He had a Diploma in Statistics which he obtained with a credit in May 2001, and
• He had a Bachelor of Arts in Social Services which he obtained with a pass in 2005.

The worked then served in the civil service without incident. Meanwhile, his employer

Awaited delivery of the worker’s degree certificate which he had indicated upon application for the job that he would bring in due course.

However, at the time of his application, the worker had not yet obtained his degree, and he was awaiting results of his final year. He was pursing the degree course with the University of Botswana. Unfortunately, Makwati did not pass his degree programme, with the result that he was never conferred with a degree qualification. He did not inform his employer of this important development and therefore remained employed as a degree holder until 2011 when the Central Statistics Office was detached from the Ministry of Finance and created as a statutory body called Statistics Botswana.

All former employees of the now defunct Central Statistics Office were required to resign and join the new entity Statistics Botswana. The worker followed this process, duly resigned and all his terminal benefits were accordingly paid. He still said nothing to his new employer about his failure to obtain a degree qualification.

In 2014 the issue of the worker’s qualifications arose. A whistle-blower alerted the Corporate Services Manager of Statistics Botswana to the fact the worker was not a degree holder. Upon receipt of this information, the Corporate Services Manager called the worker to his office in the presence of the Director of Corporate Services. Under questioning, the worker maintained that he had a degree in statistics. He was then given five days in which to go to the University of Botswana and obtain a copy of his degree certificate. Five days later, when the worker had failed to produce a copy of his degree certificate, Statistics Botswana requested confirmation from the University of Botswana if indeed this worker had a degree qualification. The response from the University was as follows:

It is with regret that …. [worker’s name] did not complete his Batchelor of Arts (Social Sciences) In fact he left the University with fail and discontinue recommendation in the Academic year 2005/6 at year 4 level.

Statistics Botswana then decided to take disciplinary action against the worker, who was charged with “Wilful misrepresentation by the employee In respect of his skill or qualifications contrary to section 26 (4) of the Employment Act.” The hearing was conducted, the worker was found guilty and summarily dismissed.

The worker then applied to the Industrial Court, seeking compensation for unlawful dismissal. He argued that he had not made any misrepresentation to Statistics Botswana.

The Decision of the Industrial Court

The Industrial Court found that Section 51(4) of the Statistics Act provided that all rights, powers and duties which were vested on the Central Statistics Office were transferred, vested in, enforceable by and against the Statistics Botswana. Therefore, if Mathe worker had misrepresented his qualifications to the Central Statistics Office, the right to take disciplinary action was transferred to and could be enforced by Statistics Botswana.

Unfortunately, Statistics Botswana lost the case because of an elementary procedural error: the worker was required to present mitigation before the disciplinary hearing found him guilty of misconduct. The Industrial Court found this to be clearly unfair:

Mitigation must follow a guilty verdict. When an employee has been found guilty at a disciplinary inquiry, the weight of the verdict and the possibility of job loss become a reality. Mitigation at this point is a serious issue that can in some instances alleviate grave consequences. If mitigation is called for before a guilty verdict, the gravity of the process of mitigation is lost or at least compromised.

The worker was therefore awarded compensation by the Industrial Court. The procedural aspect of this case is dealt with in Chapter 15 of Issue Number 34 of Andrew Briscoe’s Botswana LabourLaw Review.