Unfair dismissal claim fails despite flaw in dismissal procedural Unfair dismissal claim fails despite flaw in dismissal procedural

Unfair dismissal claim fails despite flaw in dismissal procedural

11 September 2018 | Employment and Safety

An employee was dismissed after providing intentionally false information on his CV regarding the duration of his previous employment. The employee's conduct outweighed the employer's failure to provide a sufficient opportunity to respond to the reasons for the dismissal. The claim for an unfair dismissal remedy was therefore unsuccessful.

In Issue

  • Was there a valid reason for the employee’s dismissal?
  • Was the employee’s dismissal harsh, unjust or unreasonable?
  • Credibility of dismissed employee as a witness.

The Background

The applicant (Mr Tham) commenced working for the respondent (Hertz Australia Pty Limited T/A Hertz) in November 2016, and was dismissed with immediate effect in August 2017.

Shortly after commencing employment with Hertz, Mr Tham raised a series of issues and complaints which Hertz maintained were “completely frivolous and unmeritorious”. For example, Mr Tham claimed he suffered an injury at work when lifting a 10L can of water to refill the windscreen wiper dispenser in a vehicle. Hertz submitted that it provided 1L cans for this purpose, and did not have 10L water cans at any of its operations. 

Due to Hertz’s concerns about Mr Tham’s character, they began making enquiries into the information that Mr Tham provided when he applied for his role with Hertz.

After conducting some searches, Hertz identified that Mr Tham had made an unfair dismissal claim against his previous employer, Conrock Group Pty Ltd (Conrock), after being dismissed by them in 2011. However, Mr Tham had stated to Hertz that he had been employed by until September 2015.

The Decision at Hearing

In claiming that his dismissal was unfair, Mr Tham argued that he had notified Hertz of the mistakes in his CV prior to his employment commencing. He also submitted that prior to the dismissal, Hertz failed to notify him of the reason for his dismissal and he had not been given sufficient opportunity to respond to the allegations against him.

However, the Commissioner found that Mr Tham was not a credible witness, feigned ignorance when it suited him, was prone to exaggeration and much of his evidence was inconsistent and self-serving.

The Commissioner accepted that Mr Tham had intentionally misled Hertz into believing that he had a history of stable, long-term employment. Mr Tham’s conduct was enough to justify Hertz’s loss of trust and confidence in Mr Tham’s ability to perform his role with honesty and integrity. The misleading information provided in the CV was enough for Hertz to justify a valid reason for his dismissal, and Mr Tham had been notified of the valid reason.

While Mr Tham had been notified of the reason, Hertz had failed to give him sufficient opportunity to respond to the allegations. In assessing the effect of this procedural deficiency, the Commissioner held that it must be assessed and balanced against the other factors. Ultimately, it could not be established that the explanation offered by Mr Tham would have resulted in an outcome different to that of him being dismissed.

Implications for you

This decision highlights that procedural deficiencies must be balanced and assessed against other factors pertaining to the particular dismissal. A dismissal may therefore be valid even where there are procedural deficiencies, provided that other factors, such as the nature and seriousness of the employee’s conduct, outweigh any deficiencies.

Charles Tham v Hertz Australia Pty Ltd T/A Hertz [2018] FWC 3967

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Adrian Lewis

Adrian Lewis

Senior Associate