What are the rights of an employer when faced with an intentionally false misrepresentation committed by an employee?
In short an employer can generally fairly dismiss an employee who has intentionally provided false information on a resume or CV.
The Hertz Case (Background)
The case of Charles Tham v Hertz provides us with some insight.
A vehicle services attendant for Hertz had filed a worker’s injury complaint for an injured shoulder. He claimed that he lifted a 10-liter can of windscreen wiper fluid. The claim was approved by the insurance company of the employer, however, this set off an investigation by the employer into the vehicle services attendant’s claim. The company used 1-liter cans of windshield wiper fluid, not 10-liter cans so he could not have injured himself at the workplace as he had claimed.
The employee also filed complaints against Hertz to Worksafe for bullying. He also filed a complaint to the Victorian Equal Opportunity and Human Rights Commission for discrimination he allegedly experienced at the workplace.
The company’s human resources personnel began to suspect an abuse of the system. The managers at the workplace, as well as his colleagues at work, began to complaint about the vehicle services attendant’s behaviour.
The human resources manager did a Google search and found that the vehicle services attendant had a habit of filing lawsuits against his former employers. The human resources manager then saw that the vehicle services attendant had filed an unfair dismissal claim against a former employer.
The date of his filing of the unfair dismissal claim was inconsistent with the information the vehicle services attendant provided in his resume. He claimed that he worked for that employer for five years, but he had been dismissed after one year of employment and filed that unfair dismissal claim.
They then decided to confront the vehicle services attendant with their findings. The vehicle services attendant did not appear at the meeting. Hertz dismissed him and so he filed an unfair dismissal claim against Hertz.
How the Fair Work Commission Decided?
In his evidence, the attendant claimed that the version of his resume that he sent to Hertz contained a mistake. He claimed that he did not mention the application against his former employer because he was advised that he should not include his past problems. When the attendant was interviewed, he was not asked about the information he provided.
During the cross-examination, more “mistakes” in his employment history contained in the resume were found. Particularly, the errors involved the length of time he worked for his past employers.
Hertz was well within its employer’s rights to rely on the honesty and integrity of its employees. The deceit of the attendant put in question the ability of Hertz to trust him. The attendant’s role at the workplace involved trust and confidence as he received the cars that Hertz clients returned.
The attendant’s mistakes were intentional and misleading, and they were significant enough for Herts to lose trust and confidence in his honesty and integrity.
Hertz was found to have fairly dismissed the employee.
The vehicle services attendant contended that even if Hertz was within its rights to dismiss him, the way in which the dismissal was carried out was not fair as he was not given the opportunity to respond to the allegations of deceit made against him. However, the Fair Work Commission found that even if the vehicle services attendant was given the opportunity to respond, the outcome would still be the same.
Hertz could have done a better job following dismissal procedures, but the grave and intentional dishonesty of the attendant far outweighed the poor procedures – so Hertz was successful in defending the unfair dismissal claim from the employee.
Full case citation: Charles Tham v Herz Ausstralia Pty Ltd T/A Hertz [2018] FWC 3967