A friend of mine, who spent one summer reupholstering worn movie seats, proudly held the title ‘chairman of the cinema’. Indeed, when it comes to CV building we are all guilty of some degree of puffery or embellishment. The Fair Work Commission is yet to fully thresh the boundary between CV ‘padding’, which is often benign, and fraudulent misrepresentation, which is both grounds for termination and a cause of action. The commission has cast new light on the potential consequences of pre-employment misrepresentation.
In the recent case of Emma Valenzuela v Spectrum Community Focus Limited, the applicant employee was denied compensation for unfair dismissal because she had intentionally misrepresented her qualifications. The employee, Valenzuela, sought remedies after she had been summarily dismissed. At the time of dismissal, the employer alleged that Valenzuela had engaged in serious misconduct so as to warrant termination without notice. The employee’s lack of expertise and knowledge, coupled with irresponsible conduct, had brought the business into significant financial harm. Following termination, it was discovered that Valenzuela had intentionally misrepresented her qualifications. She had falsely claimed to be accredited with an MBA as well as two other industry specific qualifications.
In what is important although awkward reasoning, The Fair Work Commission found that the employee’s dismissal was in fact unfair in that neither notice nor payment in lieu of notice were supplied by the employer;
‘The applicant was guilty of poor performance rather than serious misconduct. This would normally justify notice of termination. I find that the dismissal was unfair- but only to the extent that the applicant should have been afforded notice’.
However, in light of the applicant’s ‘dishonesty concerning her qualifications’, the commission denied the employee any payment of compensation.
Put broadly, if an employee has intentionally given false information relevant to the employment in an application or interview, the employer will have a claim to damages if it can be shown that reliance upon that information caused the damage. Of course, the more likely outcome is dismissal. If, however, a prospective employee does not volunteer certain information (e.g., prior convictions) and the employer makes no inquiry, the employee’s silence will not normally amount to misrepresentation.
Lessons for Employers (and Employees)
Latent in the Commission’s reasoning is a suggestion that an employer may mitigate a claim of unfair dismissal in instances of fraudulent misrepresentation by their employees. Whether or not a claim of unfair dismissal can be defeated or lessened by misrepresentation will depend on the facts of the case. In this instance, the commission balanced the severity of employer’s workplace violations- which were serious and costly- against the extent to which the dismissal was unfair. Note too that the employee’s dishonesty had an additional effect of ‘casting serious doubt’ on her credibility. Thus, a seemingly harmless mistruth may manifest into a dismissal, a lawsuit and may undermine a claim of unfair dismissal.
Rankin & Co. is committed to helping employers and employees navigate these recent changes in Employment Law. The content of this article is intended for general interest purposes only and does not constitute legal advice. Contact the employment lawyers at Rankin & Co. for specialised advice.