A perfect candidate for a job comes to you with a great employee line on a resume, great qualifications, great experience, and it seems you have filled the role with a competent and experienced person.
You don’t reference check because you don’t expect a candidate to lie on a resume. You hire the person and they work well, for a while. After a promotion (based on their qualifications) they start to fail in their new role. Not only do they fail, but their lack of competence starts to damage the business.
A recent Fair Work Commission case recently looked at this issue. A dismissed employee was refused compensation because she “deliberately deceived” her employer about her qualifications.
The manager stated on her application for an accountancy job at a not-for-profit organisation that her qualifications were being a senior member of the accountancy body and that she had an MBA. She later became finance manager and reported directly to the company’s chief executive and board of directors.
Employee Lies on a Resume
The manager failed to file important documents with the government charities regulator on time, and even after an extension, endangered the organisation’s public benevolent institution status when she lodged its return two days late. The manager also reported an $80,000 loss to the board, rather than the correct position of a $300,000 profit!
The organisation immediately dismissed the manager for the serious misconduct of the late lodgement to the government regulator, her poor financial reporting and her attitude towards the allegations against her. The Commission said the finance manager caused the company “serious damage” when she failed to file its return to the regulator within the required timeframe.
While the dismissal was unfair because the employer mischaracterised the termination as serious misconduct rather than poor performance (and so not paying notice), the Commission declined to award compensation because the accountant was dishonest about her finance qualifications—a matter the employer did not uncover until after her departure. The employee had simply lied on her resume.
The Commission said she “deliberately deceived” the company about her qualifications when she originally applied for a position. The Commission made the interesting comment about the consequences of hiring the manager:
“It would be reasonable to infer that at least part of the [finance manager’s] poor performance was due to the fact that she was ‘out of her depth’ in performing the finance manager’s role…If she had been honest with [the employer] about her qualifications she might never have been appointed to the position.”
Lying to an employer
If an employee misrepresents their qualifications and experience for a job in a material way, that is grounds for dismissal. An important part of the employment relationship is trust and confidence between the parties. Lying or deliberate deception break down that trust and confidence.
In addition, when an employer asks a specific question and does not receive an honest answer, that is misconduct and provides a legal justification for termination. The courts have consistently applied the notion that behaviour which is destructive of the necessary confidence that must exist between an employer and an employee is grounds for dismissal.
It is a well-established principle that the evidentiary burden in a case of serious misconduct shifts to the employer. The standard to be applied in such cases was the civil onus, on the balance of probabilities, that an employee has lied. In other words, it is up to the employer to prove the misconduct.
In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade, Deputy President Sams identifies four questions that arise for consideration in a case concerning summary dismissal for misconduct:
1. Was the conduct against the dismissed employee proven?
2. Did the seriousness of the conduct justify summary dismissal?
3. Did the conduct constitute a fundamental and wilful repudiation of the contract?
4. Were mitigating factors taken into account by the employer, such as length of service?
Where an employee lies on their resume, the employer could discover it:
1. Before hiring, in which case the employee is not offered the role;
2. While the employee is working, but no issues have arisen; and a judgement is made to either raise the issue with the employee and take action, or ignore the deception; or
3. While the employee is working but the employee is suffering performance issues out of which inquiries are made as to the person’s qualifications and skills.
The obvious solution is reference checking up front. If the employee provides a resume, they should also be requested to provide references, which are contacted.
Small or immaterial inconsistencies will not ground reasons for termination. Finding out later the employee has added a month or two to a period of service or left out a job that only lasted a few weeks will not generally entitle you to terminate. In the case above, it was “deliberate deception” which materially affected the person’s ability to perform the role. That is the level of deception that would permit termination.