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12 July 2018 Everyone lies in their job applications... so can I fire them?

By Simon Obee, Senior Associate

There is a common perception that most people lie in their résumés and job applications. Whether it be the exaggerating the seniority of a role, extending the length of time you actually worked in a particular position or describing a particular epoch as "time spent travelling" to avoid disclosing a short but ill-fated period of employment. So what rights does an employer have when it discovers that Tom never completed his degree; that Dick's referee is in fact his Mum; or that Harry was Assistant to the Regional Manager rather than Assistant Regional Manager?         

A recent decision in the Fair Work Commission, Charles Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967 sheds some light on how the Fair Work Commission approaches these issues.
 
The case concerned an unfair dismissal application by Mr Tham who had been dismissed after nearly 9 months of employment as a  Vehicle Services Attendant. The basis of the termination of his employment was that in his résumé he had claimed he had been employed by his previous employer for approximately five years, when in reality he had only been employed for less than one.
 
Mr Tham claimed the reason for his dismissal was not valid as he had (he claimed) informed his employer shortly after applying for the role that there was a mistake in his résumé. He also claimed that the dismissal was not proportionate as the shorter length of employment had no bearing on his ability to perform the role for Hertz.
 
The events that led to Mr Tham's dismissal were that – after several months in employment - Hertz began to have concerns about his character due to various conduct issues at work. Hertz therefore started making enquiries with his former employers about Mr Tham and performing some Google searches on him. One of these searches revealed that Mr Tham had brought unfair dismissal proceedings against a former employer in 2011 after having been dismissed by them that year.
 
This was inconsistent with Mr Tham's résumé which provided that he had worked for the employer from 2010 to 2015.
 
Mr Tham was therefore invited to a meeting the following day to discuss an allegation of serious misconduct regarding the falsities in his résumé. Mr Tham did not attend the meeting citing illness due to stress. Hertz then took the decision to dismiss him, despite having not heard from him in relation to the allegations.
 
In considering the question of whether Mr Tham had in fact brought the errors in his résumé to his employer's intention, Commissioner Harper-Greenwell preferred the evidence of Hertz (who denied Mr Tham ever did so) to that of Mr Tham.
 
The Commissioner then had this to say on Mr Tham's argument that the "mistakes" in his job application had no bearing on his ability to perform the role:
 
"[121] I reject Mr Tham’s assertion that the errors in his resume were unintentional “mistakes” and that his shorter prior work history did not impact on his capacity to fulfil the inherent requirements of his role. Mr Tham had not made inadvertent errors in his resume, Mr Tham had altered the months and years he claimed to have worked to accommodate his narrative. He had also left out employment history due to either being terminated by his previous employer or to divert attention away from the fact that he taken action against numerous previous employers, regardless of whether that action had a legitimate basis or not.
 
[122] Mr Tham had intentionally misled his employer into believing he had a history of stable and long term employment. As a Vehicle Service Attendant, being the point of contact for a returned vehicle, Hertz were reliant on the honesty and integrity of its employees, especially should there have been valuables left behind in the vehicles by its customers. The gravity of the deceit put into question the ability for Hertz to trust Mr Tham to perform that role with honesty and integrity.
 
[123] 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’ 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. Consequently I am satisfied that Hertz had a valid reason to dismiss Mr Tham.
 
On the question of whether the dismissal was "harsh, unjust or unreasonable" the Commission considered those matters set out in section 387 of the Fair Work Act 2009 (Cth), and – in a win for common sense – found that despite some procedural deficiencies in Hertz's processes, there was no unfair dismissal. It put it this way:
 
"[153] Hertz dismissed Mr Tham for a valid reason relating to his conduct. The notification of the dismissal and the later aspects of the procedure adopted by Hertz in proceeding with the dismissal included some deficiencies. Whilst Hertz failed to provide Mr Tham with a sufficient opportunity to respond to their allegations I am not satisfied that the explanation offered by Mr Tham in his submissions or at the hearing would have resulted in a different outcome. Those procedural deficiencies have been considered and balanced against the conduct of Mr Tham which provided a valid reason for the dismissal.
 
[154] 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. I am therefore satisfied that the dismissal was not harsh, unjust or unreasonable. Mr Tham’s application for unfair dismissal remedy is therefore dismissed and an order to that effect will be issued accordingly".
 
The decision is useful guidance for employers who detect – even after some period of time, and only after doing their own detective work – that an employee has been deliberately dishonest in their job application. Given that the performance of most (if not all) positions requires the relevant employee to act honestly, the case supports the view that an employer will be justified in taking firm action where dishonesty in a job application is subsequently discovered, even if the misrepresentation does not relate to the qualifications or skills required to perform the role.   


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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