The provision of misleading CVs by prospective employees can lead to a number of legal problems when the truth is discovered. In most cases, the employer will dismiss the employee (and provided the investigation has been careful, the employer will usually be on safe ground in doing so). In a number of recent high profile cases, criminal charges (for obtaining financial advantage by deception, the use of false documents, and other similar charges) have resulted from misleading CVs. But can the employer also sue an employee who has obtained employment with a deceptive CV? An employer’s attempt to do so in a recent case failed, but it appears that the claim could have succeeded if the employer had been more careful about selecting the correct cause of action.
The first thing that an employer will need to establish to get a claim off the ground is that some loss has been suffered (beyond just the wages which have been paid to the employee). In a 2014 decision, the Supreme Court of Western Australia considered a claim by an employer to recover wages which had been paid to an employee whose CV was described by the Court as “padded” (which was, given the facts, a very generous way of saying, “largely invented”). The employer described its claim as being “immensely simple”; but for the “padded” CV, argued the employer, the employee would not have been hired, no wages would have been paid, and thus the employer should now be able to get all the wages back.
The problem (which illustrates the axiom that anything which is described as being “immensely simple” almost certainly is not) was that the employer could not “give back” the services which the employee had rendered, so that the employer would be unjustly enriched if it got back all the wages (and thus received the employee’s services for free). Despite the inventive CV, the employee’s services had apparently been so satisfactory that the employee had been promoted before the untruth came to light. The Court said that:
“here it is simply not possible to ‘mop up all the spilt milk’ from [the period of the employment] put it back in the milk bottle, and then to assume it never left the bottle”.
However, the Court did say that the position would have been different had the employer been able to establish some “outcome of loss or damage” – which brings us to the recent case. The employer’s claim in this case was brought as a cross-claim to the employee’s claim for adverse action. The employer alleged that if the employee had been truthful about his previous experience, the employer would not have employed him (and would therefore not have incurred a recruitment fee of $45,781.32). Accordingly, it was that sum that the employer sued to recover.
The employee’s adverse action claim failed, but so did the employer’s cross-claim. The reason was that the claim was brought under section 18 of the Australian Consumer Law which forbids misleading and deceptive conduct, as long as the conduct is “in trade or commerce”. However, as the Court found that any representations which the employee had made about his previous employment experience were not “in trade or commerce”, the elements of section 18 were not satisfied. In particular, the Court noted that there is a specific provision of the Australian Consumer Law (section 31) which protects those to whom employment is offered from misleading and deceptive conduct (and which does not require the conduct against which it protects to be “in trade or commerce”). Accordingly, the Court said that as the specific protection for representations about employment under section 31 of the Australian Consumer Law covered statements made by prospective employers, but did not extend to statements made by prospective employees, the general protection of section 18 could not be used fill the gap.
However, the employer in the recent case might have had more luck if the claim had been brought in the tort of deceit. Deceit is established where a person makes a false statement intending another person to act on it, and the other person does act on it and by doing so, suffers loss. Although the element of loss may sometimes be difficult to establish, the payment of the recruiter’s fee would appear to satisfy that element here.
So, as long as you have the right cause of action (and you have actually suffered loss) it should be possible to sue an employee whose CV turns out to lack a Certain Verisimilitude. Of course, as with so many parts of the law, the only thing better than winning a suit to recover damages is not suffering any damage in the first place. Care in reference checking and interviewing (and contractual protections where those tasks are outsourced to external recruiters) are the best defences against employees for whom curriculum vitae translates not as “course of life” (the correct translation), but something more along the lines of “course of lies”.
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