Misrepresentations made during job application process may result in dismissal
Unfortunately, it is not uncommon for individuals to overstate their qualifications and work history when applying for new employment. However, in the recent decision of Charles Tham v Hertz Australia Pty Limited T/A Hertz  FWC 3967, the Fair Work Commission found that an employer's reliance upon the representations made by a prospective employee are so great that the employer may be entitled to sever the employment relationship if it later becomes aware that those matters were false.
While this case related to a car rental company, the facts can be readily applied to real estate agencies.
Mr Tham commenced employment as a Vehicle Services Attendant with Hertz in November 2016.
He was summarily dismissed in August 2017 on grounds of serious misconduct after Hertz came into knowledge that he had intentionally provided false and misleading information concerning his employment history in his application for employment. That is, Mr Tham had indicated on his application that he had previously been employed by Conrock Group Pty Ltd (Conrock) as a Quality Control Assurance Officer from August 2010 until September 2015 when he had, in fact, only been employed by Conrock from August 2010 until June 2011.
At the time of submitting his application for employment to Hertz, he signed an acknowledgement which stated:
'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 signed a further acknowledgement on similar terms when formally accepting the offer of employment in or around December 2016.
Over the subsequent months, Mr Tham raised various frivolous and vexatious complaints pertaining to his employment.
In February 2017, Mr Tham claimed to have sustained an injury at work and filed an application for workers compensation. While the claim was accepted, the account given by Mr Tham concerning the mechanism of injury caused Hertz to undertake further enquiries into his character.
In the course of undertaking those further enquiries, Hertz became aware that Mr Tham had, in fact, been dismissed by his previous employer within his first year of employment and that he had brought an unfair dismissal claim against them.
Hertz invited Mr Tham to attend a meeting to discuss the alleged dishonesty but he failed to attend the meeting, citing a stress-related illness. Hertz proceeded to summarily dismissed Mr Tham on grounds of serious misconduct.
Mr Tham issued an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth), (the Act) alleging that his dismissal was unfair and disproportionate because:
he had multiple versions of his CV saved to his computer and had inadvertently submitted the incorrect version to Hertz;
he had verbally corrected the inaccuracies in his CV with Hertz prior to accepting the offer of employment;
there was no intent to deceive Hertz;
he was unaware of the potential consequences of making false declarations; and
he was not provided procedural fairness because he was not given sufficient time to respond to the allegations of dishonesty.
Hertz denied that Mr Tham had, at any time prior to accepting the offer of employment, notified it of the inaccuracies in his application. It was Hertz's position that Mr Tham had intentionally lied on his application to avoid being questioned about a four-year gap in his work history.
Issues for Determination
The key issues for determination by the Commission were as follows:
whether there was a valid reason for Mr Tham's dismissal;
whether Mr Tham was a credible witness such that his evidence surrounding his purported correction of the inaccuracies in his application could be properly relied upon; and
whether Mr Tham's dismissal was harsh, unjust or unreasonable in the circumstances.
It was ultimately held that Mr Tham had willfully misled Hertz and his dishonesty was a valid reason for dismissal in circumstances where it was conduct which was 'fundamentally inconsistent with the continuation of the employment relationship'.
On this issue, Commissioner Harper-Greenwell stated:
'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 was reliant on the honesty and integrity of its employees, especially should there have been valuables left behind in 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.'
The Commissioner also found that Mr Tham lacked credibility as a witness, having been prone to exaggeration, giving evidence which was inconsistent and self-serving, and feigning ignorance when it suited him.
While the Commission accepted that there had been a failure on Hertz's part to allow Mr Tham an opportunity to respond to the allegations, it held that the dishonesty which had been proven by Hertz was of such severity that it went to the very heart of the employment contract and it was, therefore, unlikely that any response provided by Mr Tham could have changed the outcome.
Key Points for Principals of Real Estate Agencies
Generally speaking, a past indiscretion by an employee which is too remote in time will likely provide insufficient basis to justify a dismissal. However, this case demonstrates that where there is an act of intentional dishonesty which goes to the heart of the contract of employment such as to cause a breakdown in the employer's trust and confidence in the employee's ability to perform the role, the employer may be justified in effecting a summary dismissal provided it acts in a timely and appropriate manner once the earlier misconduct is identified.
This case does also demonstrate that the Commission's considerations go beyond the factors set out at section 387 of the Fair Work Act 2009 (Cth) such that the nature and severity of the employee's misconduct may outweigh procedural deficiencies.
Nevertheless, prior to performance managing and/or dismissing employees, employers should take care to ensure that there is clear evidence of a valid reason for those steps being taken, and that the employee is afforded procedural fairness.
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