The Fair Work Commission has held that the dismissal of an employee for providing false and misleading information during the recruitment process was not unfair, despite procedural failings by the employer.
Mr Tham commenced working for Hertz Australia Pty Limited T/A Hertz on 1 December 2016 as a Vehicle Services Attendant until he was summarily dismissed by Hertz on 25 August 2017.
Upon applying for the role of Vehicle Services Attendant, Mr Tham signed an application form which included the following acknowledgement:
'I understand that providing false information or withholding information relevant to my application for employment with Hertz may result in the withdrawal of an offer of employment or termination of employment.'
Mr Tham was dismissed for engaging in misconduct by providing false and misleading information to Hertz during the recruitment process. Specifically, Mr Tham had stated that he had worked for a previous employer for more than five years and it was later discovered that he had in fact only worked for that employer for less than a year, resulting in a four year gap in his employment history.
The HR manager for Hertz began investigating Mr Tham's work history after becoming suspicious of a workers' compensation claim he lodged, two months after joining the company in December 2016. The HR manager gave evidence that she had real concerns regarding Mr Tham's character and as such commenced making enquiries regarding the information that he had provided when he applied for his role.
The investigation into Mr Tham's work history included contacting his former employers, trying to verify his degree, and performing a search in Google to identify whether he had brought any proceedings against his former employers.
One of those searches revealed that Mr Tham had filed an unfair dismissal application against a former employer in 2011 after being dismissed by them on 1 June 2011. Hertz submitted that these dates were inconsistent with Mr Tham's resume and Mr Tham's resume did not list any other employment between 2011 and 2015.
On 14 September 2017, Mr Tham made an application to the Fair Work Commission pursuant to section 394 of the Fair Work Act 2009 (Cth) for a remedy in respect of his dismissal by Hertz.
Mr Tham submitted that his dismissal was unfair as he had notified Hertz of the inaccurate information in his resume prior to the commencement of his employment and that the dismissal was disproportionate in the circumstances.
Hertz denied that Mr Tham had provided notification of the inaccurate information and submitted that Mr Tham had intentionally lied on his resume so as to avoid being asked questions regarding a four year gap in his employment history.
The FWC found Hertz had a valid reason for dismissing Mr Tham because the errors in his resume 'were not only intentional, they were also misleading' which meant that Mr Tham's conduct was significant enough to justify Hertz's loss of trust and confidence in his ability to perform his role with honesty and integrity.
Importantly, the FWC noted that Hertz had failed to give Mr Tham sufficient opportunity to respond to the allegations resulting in notable procedural deficiencies. However, the FWC stated that procedural deficiencies must be assessed and balanced against other factors in determining whether the dismissal was unfair. Ultimately, the FWC was not satisfied that the explanation offered by Mr Tham in his submissions or at the hearing would have resulted in a different outcome. Therefore, the gravity of the intentional dishonesty, when balanced against the procedural deficiencies, was fundamentally inconsistent with the continuation of the employment relationship.
When evidence of false and misleading information in the recruitment process is uncovered after employment has commenced, employers should have regard to all the circumstances before taking any further action. For example, employers should have regard to the nature of any inconsistencies and whether those inconsistencies go to issues of honesty and integrity such that they damage trust and confidence which are necessary for the ongoing employment relationship. Regard should also be had as to whether any identified inconsistencies are likely the result of inadvertence rather than intentional dishonesty.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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