Can you Dismiss an Employee for Dishonesty During the Recruitment Process?

It is only natural that job applicants will try to portray themselves in the best possible light during the recruitment process. Sometimes this can involve exaggerating certain skills, qualifications or experience that they may (or may not) possess, or omitting certain information from their CV. In a recent case, the Fair Work Commission considered the issue of whether it is lawful for an employer to dismiss an employee who was not entirely honest or forthcoming during the recruitment process.

Background

In the case of Njau v Superior Food Group Pty Ltd [2018] FWC 7626, the worker commenced employment with the Company as a Store Worker. In his job application form, the worker disclosed some (but not all) of his prior criminal convictions – despite being specifically requested to disclose all convictions. In particular, the worker failed to disclose his most recent and serious convictions.

However, the worker agreed to undergo a national police check as part of the job application process. Approximately two weeks after the worker commenced employment, the Company received the results of the police check. The company took no action in relation to those results until an audit took place more than a year later. After the audit was conducted, the Company dismissed the worker for failing to disclose all of his prior criminal convictions during the recruitment process.

The Fair Work Commission found that it was not lawful for the Company to dismiss the worker for failing to disclose all of his prior criminal convictions in circumstances where it had been alerted to those convictions more than a year earlier. Further, it could not be said that it was a condition of employment at the Company that the employee successfully pass a police check. Therefore, the worker had been unfairly dismissed.

Interestingly, it emerged during the hearing that the worker gave false information to the Company in his resume. This included the worker stating that he had been employed by a particular food manufacturing business for more than five years, when in fact he had never worked at that business. Moreover, the worker provided the details of a referee from that business who had also never worked at the business and was his wife. Since this information only came to light during the hearing, the Commission held that the dismissal was still unfair.

Implications for employers

Dishonesty during the recruitment process can constitute a valid reason for dismissal. However, employers must act swiftly when discovering that an employee has not been entirely honest or forthcoming during the recruitment process. Further, employers should put their concerns to the employee for a response before making any decision to take disciplinary action, including possible dismissal. If the dishonesty relates to a past criminal conviction, employers should consider whether that conviction is relevant to the ability of the employee to properly perform their role.

Queries

For further information please contact the author or a member of our Employment, Workplace Relations & Safety team

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

The Authors

Martin Alden

PARTNER, MELBOURNE