Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes. Whilst it is good practice for employers to double-check a job candidate’s qualifications and experience prior to making an offer of employment, the reality is that information provided in a curriculum vitae or an interview will be relied upon by an employer when considering who to recruit.
For employers, the consequences of incorrect information being provided by an employee can not only raise questions about the employee’s capability to perform the role but also their honesty and integrity in the employment relationship.
This was recently acknowledged by the Fair Work Commission (FWC) in Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967. The matter concerned a Vehicle Services Attendant who was dismissed from his employment following the discovery that he had lied about his length of service at a previous employer on his curriculum vitae.
The discovery arose after the employee had made a worker’s compensation claim that seemed dubious to the employer’s HR manager, particularly in the context of concerns that the employee was making a number of other complaints and applications to various commissions and tribunals about the workplace practices and conduct of the employer.
The HR manager contacted the employee’s prior employers, tried to verify his degree and conducted a Google search which uncovered that the employee had made an unfair dismissal claim against a previous employer in relation to a date of dismissal that was not consistent with what had been provided in his curriculum vitae. Whilst the employee had stated he was previously employed for five years – the unfair dismissal decision noted an employment period of ten months.
Having formed the view that it was unlikely that the incorrect date was a typographical error, the employer put an allegation to the employee that he had deliberately provided false and misleading information to the employer.
When the employee failed to attend the disciplinary meeting, the employer made the decision to terminate the employment relationship. The employee subsequently lodged an unfair dismissal claim with the FWC.
The employee gave evidence that the incorrect date was an error and that he had notified the employer of that mistake both prior to the commencement of and during his employment. In considering the matter, the FWC took issue with the employee’s credibility generally, noting in particular that it was not plausible that the employee had disclosed the very error that the employer had relied on, despite there being numerous other errors in his curriculum vitae.
The FWC was convinced that the employee had intentionally misled his employer into believing he had a history of stable and long-term employment and attempted to divert his employer’s attention away from the fact that he had been terminated and that he had taken action against numerous employers (regardless of whether such action was legitimate or not).
Despite their being some procedural deficiencies in the employer’s disciplinary process, the FWC was satisfied that the significance of the employee’s dishonesty justified the employer’s loss of trust and confidence in the employee’s ability to perform his role with honesty and integrity. Accordingly, the FWC dismissed the application.
Lessons for employers
When discoveries of lies or deceit in the recruitment process are made after employment has commenced, employers should carefully consider the inconsistencies having regard to all the circumstances prior to taking any further action. For example:
- What is the nature of the inconsistency?
- Was it likely an inadvertent error or intentional?
- Does it go to the inherent requirements of the position?
- Does it go to issues of honesty and integrity?
Dishonesty, even in the pre-employment process may damage trust and confidence which are necessary for the ongoing employment relationship.
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