China: 劳动法最前线——从公司人事的角度看劳动法动向 第 156 回劳动者伪造学历情况

Last Updated: 24 July 2017
Article by Broad & Bright

为了取得自己心仪的工作岗位,一些劳动者在应聘过程中会有伪造学历的行为。甚至于 在一些通过猎头公司介绍的招聘案例中,也会出现伪造学历的情况。究其原因,主要是猎头 公司或招聘企业的人事担当缺乏辨别能力、伪造学历证书的内容太逼真等等。在劳动者入职 一段时间后,当企业的管理层知道劳动者伪造学历的情况后,往往大吃一惊,感觉上当受骗。 此时,如何依法对伪造学历的劳动者进行处理,成了企业最关心的问题,本文拟就此展开一 些讨论。

一、法律规定

根据《劳动合同法》第二十六条第一款第一项的规定,劳动者以欺诈、胁迫的手段或乘 人之危,使用人单位在违背真实意思的情况下订立或变更劳动合同的,劳动合同无效。根据 《劳动合同法》第三十九条第五项的规定,因本法第二十六条第一款第一项规定的情形致使 劳动合同无效的,用人单位可以解除劳动合同。并且,根据《劳动合同法》第三十九条的规 定,前述情况下解除劳动合同的,用人单位无需支付经济补偿金。

从上述法律规定来看,劳动者以欺诈的手段使用人单位在违背真实意思的情况下订立劳 动合同的,劳动合同无效,且用人单位可以立即解除劳动,并无需支付任何经济补偿金。根 据最高院公报案例《上海冠龙阀门机械有限公司诉唐茂林劳动合同纠纷案》(案号为(2011) 沪二中民三(民)终字第535 号),用人单位在招聘时对应聘者学历有明确要求,而应聘者提 供虚假学历证明并与用人单位签订劳动合同的,属于《劳动合同法》第二十六条规定的以 欺诈手段订立劳动合同应属无效的情形,用人单位可以根据《劳动合同法》第三十九条的 规定解除该劳动合同。

二、司法实务

从上述最高院公报案例来看,在审理劳动者伪造学历为由解除劳动合同的纠纷时,法院 在司法实务中主要从以下几个角度进行考量:

用人单位在录用招聘时对学历有无特别要求。

用人单位在录用招聘时对学历有特别要求的情况下,劳动者故意隐瞒自己的学历、工作 经历、违法违纪等重要信息,会对用人单位录用劳动者有重大影响,进而作出录用该劳动者 的行为。因此,当用人单位在录用时对学历未作特别要求时,则劳动者伪造学历的行为即使 存在欺诈,也很难说这种欺诈对用人单位录用劳动者的决定有实质性的影响,在这种情况下 用人单位以劳动者伪造学历为由解除劳动合同的,存在违法解除的法律风险。

用人单位在录用招聘时是否已知晓劳动者伪造学历的行为。

欺诈的认定标准之一为相对方是否知晓真实情况。实务中可能会存在以下情况:一些用 人单位的人事担当在招聘时,已通过肉眼观察劳动者提交的学历证书或向该学历证书的所在 大学进行调查后,发现劳动者提交的学历是伪造的。但是,用人单位在权衡劳动者的资质、 工作经历以及工作能力后,还是作出了对其予以录用的决定。也就是说,公司在明知劳动者 伪造学历的情况下,对其作出了录用的决定,并与其订立了劳动合同。此时,劳动者伪造学 历的行为就不构成欺诈,用人单位日后也难于以《劳动合同法》第二十六条第一款第一项和 第三十九条第五项的规定,对劳动者作出解雇的处分。

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