Employee who lied about his CV was fairly dismissed

1 March 2019

Introduction

An employee who intentionally makes dishonest representations in their CV which leads to a breakdown in the employment relationship and a loss of trust, may cause the employer to dismiss the employee, depending on the seriousness of the misrepresentation.

The Fair Work Commission (FWC) held in Charles Tham v Hertz Australia Pty Limited Trading As Hertz, that multiple “factual errors” contained in Mr Tham’s CV constituted a valid reason for his dismissal.

What happened?

On 25 September 2016, Charles Tham applied for a position at Hertz Australia Pty Limited (Hertz). His CV presented a picture of a successful and stable employment history. Hertz relied on Mr Tham’s CV and offered him a position as a Vehicle Services Attendant.

Mr Tham commenced employment with Hertz in December 2016. As part of accepting his employment, he was required to sign a declaration acknowledging that making a false representation to Hertz “may result in the withdrawal of an offer of [his] employment or termination of [his] employment”.

In early 2017, Mr Tham lodged a claim for compensation for an injury he allegedly suffered while at work. He subsequently submitted a number of complaints to WorkSafe regarding how his claim for compensation was handled by Hertz, and alleged “instances of bullying he had experienced” while employed by Hertz. He also made complaints to the Victorian Equal Opportunity and Human Rights Commission, and lodged an application to the Victorian Civil and Administrative Tribunal alleging that he had been discriminated against by Hertz.

Hertz formed a view that many of the issues raised by Mr Tham were “completely frivolous and unmeritorious”. It also had “some concerns with the validity of his [compensation] claim and the underlying injury”, including issues with Mr Tham’s “character”. These complaints prompted Hertz to conduct further enquiries as to his employment history.

Hertz made enquiries regarding the information Mr Tham provided to Hertz when he originally applied for the role. The outcome of the enquiries confirmed the suspicion of Hertz that Mr Tham had misrepresented his employment history. As Hertz later found out, Mr Tham had been previously dismissed from his employment, brought various claims against his ex-employers, and had a history of short-lived employment.

Hertz terminated the employment of Mr Tham due to the impact of his dishonesty and loss of trust.

Mr Tham subsequently lodged an unfair dismissal claim to the FWC.

What did Mr Tham and Hertz say?

Mr Tham submitted that his dismissal was unfair and disproportionate to his conduct, because he:

  1. made “mistakes” and typographical errors throughout his CV;
  2. had numerous versions of his CV saved on his computer, and he “accidentally” submitted the incorrect copy to Hertz;
  3. disclosed to Hertz the day after he made his application that he had made an “error” on his CV in relation to the dates of employment with a previous employer;
  4. had not modified his CV in order to “make it look better”;
  5. had not read the declarations he had previously signed regarding the potential consequences of making false declarations;
  6. did not read his employment contract as he believed “the contract would be in his best interests”; and
  7. was not provided a sufficient amount of time to respond to the allegations of dishonesty.

Hertz argued that Mr Tham had “intentionally misrepresented his employment background”, resulting in “breach[ing] any trust and confidence Hertz had in his ability to perform his role with honesty and integrity”.

Did the FWC find Hertz had a valid reason to terminate Mr Tham’s employment?

The FWC found in favour of Hertz and determined that:

  1. Hertz had a valid reason for dismissing Mr Tham as he had “intentionally misled his employer”;
  2. Hertz was correct in stating that “the errors in [Mr Tham’s] resume were not only intentional”, but they also “put into question the ability for Hertz to trust [him] to perform [his] role with honesty and integrity”; and
  3. when the gravity of Mr Tham’s intentional dishonesty is “considered in its totality, [it] represents matters which [are] fundamentally inconsistent with the continuation of the employment relationship”.

As a result, the dismissal was found to be valid and not harsh, unjust or unreasonable.

What are the learnings?

Employers must ensure they have checks and balances in place to identify when a prospective candidate is not being truthful about his or her CV. There are various ways an employer can safeguard its interest regarding the truthfulness of a prospective candidate:

  • carefully review the CV and start writing down questions that require clarification before you call the prospective candidate for an interview. This will assist tailor the questions you will ask during the interview;
  • check the prospective candidate’s LinkedIn account and compare what is stated in the CV;
  • conduct a careful and detailed reference check and request the contact details of the employer that you wish to speak to. If you are in doubt and particularly, if employment was only for a short period, conduct a reference check with the relevant employer; and
  • conduct a check with the institute where the candidate has obtained his or her qualification.

Employers should also carefully consider incorporating ‘false declarations’ clauses into their employment contracts. These clauses should be drafted to give an employer the right to dismiss employees who intentionally made serious misrepresentations on their CV and caused the employment relationship to breakdown due to loss of trust.

Before dismissing an employee, employers must seek legal advice on how to effectively carry out the investigation which may ultimately lead to a disciplinary process. Most importantly, employers should always remember to provide the employee with the opportunity to respond to any allegations and maintain procedural fairness.

For further information, contact our experienced Workplace Relations Team by emailing hjk@hentys.com.au