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
Most Read Contributor in China, October 2017

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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