Every­one lies in their job appli­ca­tions… so can I fire them?

There is a com­mon per­cep­tion that most peo­ple lie in their résumés and job appli­ca­tions. Whether it be the exag­ger­at­ing the senior­i­ty of a role, extend­ing the length of time you actu­al­ly worked in a par­tic­u­lar posi­tion or describ­ing a par­tic­u­lar epoch as ​“time spent trav­el­ling” to avoid dis­clos­ing a short but ill-fat­ed peri­od of employ­ment. So what rights does an employ­er have when it dis­cov­ers that Tom nev­er com­plet­ed his degree; that Dick­’s ref­er­ee is in fact his Mum; or that Har­ry was Assis­tant to the Region­al Man­ag­er rather than Assis­tant Region­al Manager? 

A recent deci­sion in the Fair Work Com­mis­sion, Charles Tham v Hertz Aus­tralia Pty Lim­it­ed T/A Hertz [2018] FWC 3967 sheds some light on how the Fair Work Com­mis­sion approach­es these issues.

The case con­cerned an unfair dis­missal appli­ca­tion by Mr Tham who had been dis­missed after near­ly 9 months of employ­ment as a Vehi­cle Ser­vices Atten­dant. The basis of the ter­mi­na­tion of his employ­ment was that in his résumé he had claimed he had been employed by his pre­vi­ous employ­er for approx­i­mate­ly five years, when in real­i­ty he had only been employed for less than one.

Mr Tham claimed the rea­son for his dis­missal was not valid as he had (he claimed) informed his employ­er short­ly after apply­ing for the role that there was a mis­take in his résumé. He also claimed that the dis­missal was not pro­por­tion­ate as the short­er length of employ­ment had no bear­ing on his abil­i­ty to per­form the role for Hertz.

The events that led to Mr Tham’s dis­missal were that – after sev­er­al months in employ­ment — Hertz began to have con­cerns about his char­ac­ter due to var­i­ous con­duct issues at work. Hertz there­fore start­ed mak­ing enquiries with his for­mer employ­ers about Mr Tham and per­form­ing some Google search­es on him. One of these search­es revealed that Mr Tham had brought unfair dis­missal pro­ceed­ings against a for­mer employ­er in 2011 after hav­ing been dis­missed by them that year.

This was incon­sis­tent with Mr Tham’s résumé which pro­vid­ed that he had worked for the employ­er from 2010 to 2015.

Mr Tham was there­fore invit­ed to a meet­ing the fol­low­ing day to dis­cuss an alle­ga­tion of seri­ous mis­con­duct regard­ing the fal­si­ties in his résumé. Mr Tham did not attend the meet­ing cit­ing ill­ness due to stress. Hertz then took the deci­sion to dis­miss him, despite hav­ing not heard from him in rela­tion to the allegations.

In con­sid­er­ing the ques­tion of whether Mr Tham had in fact brought the errors in his résumé to his employ­er’s inten­tion, Com­mis­sion­er Harp­er-Green­well pre­ferred the evi­dence of Hertz (who denied Mr Tham ever did so) to that of Mr Tham.

The Com­mis­sion­er then had this to say on Mr Tham’s argu­ment that the ​“mis­takes” in his job appli­ca­tion had no bear­ing on his abil­i­ty to per­form the role:

“[121] I reject Mr Tham’s asser­tion that the errors in his resume were unin­ten­tion­al ​“mis­takes” and that his short­er pri­or work his­to­ry did not impact on his capac­i­ty to ful­fil the inher­ent require­ments of his role. Mr Tham had not made inad­ver­tent errors in his resume, Mr Tham had altered the months and years he claimed to have worked to accom­mo­date his nar­ra­tive. He had also left out employ­ment his­to­ry due to either being ter­mi­nat­ed by his pre­vi­ous employ­er or to divert atten­tion away from the fact that he tak­en action against numer­ous pre­vi­ous employ­ers, regard­less of whether that action had a legit­i­mate basis or not. 

[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.

On the ques­tion of whether the dis­missal was ​“harsh, unjust or unrea­son­able” the Com­mis­sion con­sid­ered those mat­ters set out in sec­tion 387 of the Fair Work Act 2009 (Cth), and – in a win for com­mon sense – found that despite some pro­ce­dur­al defi­cien­cies in Hertz’s process­es, there was no unfair dis­missal. It put it this way:

“[153] Hertz dis­missed Mr Tham for a valid rea­son relat­ing to his con­duct. The noti­fi­ca­tion of the dis­missal and the lat­er aspects of the pro­ce­dure adopt­ed by Hertz in pro­ceed­ing with the dis­missal includ­ed some defi­cien­cies. Whilst Hertz failed to pro­vide Mr Tham with a suf­fi­cient oppor­tu­ni­ty to respond to their alle­ga­tions I am not sat­is­fied that the expla­na­tion offered by Mr Tham in his sub­mis­sions or at the hear­ing would have result­ed in a dif­fer­ent out­come. Those pro­ce­dur­al defi­cien­cies have been con­sid­ered and bal­anced against the con­duct of Mr Tham which pro­vid­ed a valid rea­son for the dismissal. 

[154] The grav­i­ty of the inten­tion­al dis­hon­esty upon which the dis­missal of Mr Tham was based, when con­sid­ered in its total­i­ty, rep­re­sents mat­ters which were fun­da­men­tal­ly incon­sis­tent with the con­tin­u­a­tion of the employ­ment rela­tion­ship. I am there­fore sat­is­fied that the dis­missal was not harsh, unjust or unrea­son­able. Mr Tham’s appli­ca­tion for unfair dis­missal rem­e­dy is there­fore dis­missed and an order to that effect will be issued accord­ing­ly”.

The deci­sion is use­ful guid­ance for employ­ers who detect – even after some peri­od of time, and only after doing their own detec­tive work – that an employ­ee has been delib­er­ate­ly dis­hon­est in their job appli­ca­tion. Giv­en that the per­for­mance of most (if not all) posi­tions requires the rel­e­vant employ­ee to act hon­est­ly, the case sup­ports the view that an employ­er will be jus­ti­fied in tak­ing firm action where dis­hon­esty in a job appli­ca­tion is sub­se­quent­ly dis­cov­ered, even if the mis­rep­re­sen­ta­tion does not relate to the qual­i­fi­ca­tions or skills required to per­form the role.