Can You Fire an Employee for Lying on their Resume?

In today’s competitive job market, it can be tempting for jobseekers to pad their resume in an attempt to stand out from the crowd. Changing that D into a HD or embellishing the number of years in a role is often justified as a harmless “little white lie”, especially when it may lead to an interview for that dream job.

However, this kind of “puffery” can have significant consequences for employers as it may result in hiring an employee who is unsuitable or otherwise unskilled for a position. This can impact on the productivity and success of your business.

Whether or not an employer may dismiss an employee who has lied on their resume was discussed in the recent Fair Work Commission (‘FWC’) decision of Charles Tham v Hertz Australia Pty Limited [2018] FWC 3967.

The law

The Fair Work Act 2009 (Cth) (the ‘FWA’) states that to determine whether an employee’s dismissal was harsh, unjust or unreasonable, the FWC must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct.

Facts

In 2016, Mr Tham applied for a role with Hertz as a Customer Service Representative. On his resume, Mr Tham stated he had worked for his previous employer, Conrock, for five years from 2010 to 2015.

Mr Tham was offered the role at Hertz and signed an employment contract stating that he understood that providing false information relevant to his application could result in the withdrawal of an offer of employment or termination.

Sometime after Mr Tham’s commencement in the role, Hertz began to have concerns about Mr Tham’s character and behaviour in the workplace. This caused Hertz to perform some research on Mr Tham’s background and make inquiries with Mr Tham’s former employers concerning his character and academic qualifications.

Internet searches undertaken by Hertz revealed that Mr Tham had commenced unfair dismissal proceedings against his previous employer, Conrock, in 2011, despite claiming on his resume that he was employed there until 2015.

As a result of this discovery, Hertz dismissed Mr Tham, citing that he had provided false and misleading information to them by misrepresenting employment details on his resume.

Mr Tham lodged an unfair dismissal application with the Fair Work Commission, claiming that the dismissal was harsh as Hertz had not considered Mr Tham’s actions to try and correct the inaccuracy prior to commencing employment (Mr Tham gave evidence at the Commission that he had spoken to various representatives at Hertz both prior to and at the interview). He also claimed that the dates on his resume were unintentional mistakes, and that the discrepancies on his resume didn’t affect his capacity to adequately carry out his new role at Hertz.

Decision

The FWC rejected Mr Tham’s claim that the error on his resume were simple “typos” and unintentional mistakes. At paragraph 122, Commissioner Harper-Greenwell stated:

[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.
Whilst the FWC noted there were some deficiencies in Hertz’s internal procedures in handling of the situation (such as the time provided to Mr Tham to respond to the allegations), this did not amount to an unfair dismissal as the gravity of Mr Tham’s “intentional dishonesty” was fundamentally inconsistent with the continuation of the employment relationship.

What are the lessons here for employers?

1. Ensure you do your due diligence prior to hiring any potential employee. This includes thorough screening of applications, reference checks and asking for further information if required.
2. Ensure that your employment contract is drafted to specify that if false information is provided, or references, licences and qualifications are not valid, the employee’s employment can be terminated.
3. Prior to taking any action, such as dismissing an employee, consider whether the context and extent of misleading information, i.e. was it a likely mistake or a typo? Does it go to the essential requirements of the position?

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