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No obligation on employee to provide entire employment history

We’ve all heard of situations where employees have inflated their qualifications or employment experiences to obtain the job. But what happens if an employee deliberately leaves out part of their employment history?

The job advert for Mr Findley’s role stated “previous experience of providing security services in a residential, commercial and/or university environment would be a distinct advantage.” In response, Mr Findley referred to his previous employment history with Chubb Security and Wilson Security. The employer alleged Mr Findley had engaged in misconduct by having “deliberately made misrepresentations, omissions and/or false statements in relation to his previous employment for the purpose of obtaining employment.” This is because Mr Findley did not mention his employment with Diamond Protection, another security company.

In the decision, the Federal Circuit Court held that an employee answering a generic question about their previous work experience was not obligated to provide reference to every work experience the employees had and, more importantly, the failure to disclose a period of employment did not amount to dishonesty by omission.

Having said that, the judge noted that had the question asked of the employee been worded differently (for example, have you previously been employed by any security business and if yes provide details?), dismissal may be justified if a false answer was provided and the falsity was material to the employment.

The case is a reminder for employers to be specific in the information requested in employment application forms and other pre-employment documentation.

We therefore recommend employers alter existing employment application forms to specifically require the job applicant to fully disclose all past work experience in the relevant industry. This would ensure that omissions could be used to justify a disciplinary process should an employer subsequently discover an omission.

Findley v MSS Security Pty Ltd [2017] FCCA 2898  

If you would like to know more about this case, please contact National Workplace Lawyers on (02) 9233 3989.

 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.

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