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Liar, Liar Pants on Fire!

A recent decision of the Fair Work Commission confirms that dishonesty in the recruitment process can represent a valid reason for termination of employment.

Everyone will have experienced a situation where a candidate embellishes their resume to secure a role. Often this includes exaggerating the seniority of a previous role, building upon takes/duties or responsibilities of the position, or even extending the period worked in a particular role. So, what happens if your employer finds out? Do they laugh at the fact you put your best friend as your reference, or do they fire you for being dishonest?

This question was at the heart of a recent Fair Work Commission decision: Charles Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967.

The case concerned an unfair dismissal application bought by Mr Tham against his employer Hertz Australia Pty Limited (Hertz) for dismissing him after finding out he lied on his resume. Mr Tham commenced employment with Hertz on 25 November 2016 as a Vehicle Services Attendant and was dismissed on 25 August 2017. The reason Hertz dismissed Mr Tham’s employment was because he had engaged in misconduct by providing false and misleading information during the recruitment process. The false information involved Mr Tham claiming he had been employed by his previous employer for approximately five years when this was not the case.

Shortly after Mr Tham commenced employment with Hertz, things began to unravel, and Hertz began to have concerns about Mr Tham’s character due to several conduct issues in the workplace. These concerns led Hertz to commence doing their own detective work by making enquires regarding the information he had provided in his resume. Those enquires included contacting Mr Tham’s prior employer to verify Mr Tham’s degree, as well as performing a Google search to identify whether he had bought any proceedings against former employers. The search revealed that Mr Tham had filed an unfair dismissal claim against his former employer after being dismissed by them on 1 June 2011. This date was inconsistent with the information provided by Mr Tham in his resume as to his length of service.

Hertz invited Mr Tham to attend a meeting the following day to discuss the allegation of serious misconduct regarding the falsities in his resume. Mr Tham did not attend this meeting due to stress and Hertz made the decision to dismiss him at this time, despite not having heard his version of events.

Mr Tham claimed that he was unfairly dismissed arguing that he had notified Hertz of the “mistakes” in his resume and that Hertz failed to provide him with sufficient opportunity to respond to the allegations.

However, the Commission found that Mr Tham was not a “a very credible witness…feigned ignorance when it suited him, was prone to exaggeration and…much of his evidence [was] inconsistent and self-serving. Mr Tham would give evidence and, upon realising that his evidence may not assist his case, would proceed to give conflicting evidence with implausible explanations as to why his evidence was inconsistent.”

The Commission further stated, “I am satisfied on the evidence before me that the errors in Mr Tham's resume were not only intentional they were also misleading and they were significant enough to justify Hertz's loss of trust and confidence in Mr Tham's ability to perform his role with honesty and integrity. The misleading information contained within Mr Tham's resume was enough to justify a valid reason for his dismissal.”

Although it was determined that there was a valid reason for dismissal, the Commission next had to turn their mind to whether the dismissal was “harsh, unjust or unreasonable.” It found that despite some procedural deficiencies in the process Hertz undertook, the Commission balanced these procedural deficiencies against the valid reason for dismissal and found that it was not satisfied that the explanation offered by Mr Tham in his submissions or at the hearing would have resulted in a different outcome. The Commission stated, “the gravity of the intentional dishonesty upon which the dismissal of Mr Tham was based, when considered in its totality, represents matters which were fundamentally inconsistent with the continuation of the employment relationship.”

Learnings for members:

This decision represents a common-sense approach. Procedural deficiencies must be balanced and assessed against other factors relating to the particular dismissal. It may be that depending on the circumstance, an employer may win an unfair dismissal case despite some procedural shortcomings, provided that other factors, such as the seriousness of the conduct in question, outweighs any deficiencies.

The decision is also a useful precedent for employers who identify intentionally misrepresented facts in the recruitment process. The decision highlights the need for employers to be able to have trust and confidence in all of their employees, and where dishonesty is discovered, even after a period of time, it is within employers’ rights to take firm action.

However, most importantly, the thing members should take away most from this case is that it is prudent to ensure relevant checks and balances are in place to identify when a candidate is not being truthful in their resume.

Some things to consider include:

  • ask clarifying questions in the interview stage – in an effort to determine whether what a candidate tells you in persons matches up with what is written on paper

  • conduct a vigorous reference check

  • conduct LinkedIn searches

  • check with the Institute where the candidate has obtained their qualification

  • and insert a “false declaration” clause into contracts of employment which essentially gives the employer a right to dismiss employees who intentionally make false representations in the resume.

Members in Victoria and Queensland are also reminded of the importance of including in the recruitment process a declaration in relation to false/incomplete information regarding capacity in the context of liability for injuries or illnesses which are an exacerbation of pre- existing conditions.

For specialist advice and assistance in relation to this matter please contact the RCSA Workforce Information Line on 1300 988 685.

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