Em­ploy­ees who lie on their CVs

Kapi-Mana News - - NEWS/OPINION -

G asks what an em­ployer can do when an em­ployee has lied about their qual­i­fi­ca­tions?

Em­ploy­ers who dis­cover em­ploy­ees have lied on their CV, and wrong­fully claimed to have nec­es­sary qual­i­fi­ca­tions, have sev­eral op­tions avail­able to them. These may in­clude: Can­celling the con­tract. Dis­miss­ing the em­ployee un­der any 90-day clause.

Dis­miss­ing the em­ployee for se­ri­ous mis­con­duct.

The em­ployer may be able to can­cel the em­ploy­ment agree­ment un­der the Con­trac­tual Reme­dies Act.

If the job was ad­ver­tised as re­quir­ing cer­tain qual­i­fi­ca­tions and the em­ployee has lied about hav­ing those, it’s likely the agree­ment can be can­celled.

An em­ployer may also be able to can­cel the agree­ment if the em­ploy­ment agree­ment con­tains a war­ranty that the em­ployee has the nec­es­sary qual­i­fi­ca­tions when in fact they don’t.

If the agree­ment is validly can­celled, the agree­ment will no longer bind ei­ther side.

How­ever, can­cel­la­tion can be pro­ce­du­rally dif­fi­cult to get right.

The em­ployer must not have ‘‘af­firmed’’ the con­tract af­ter dis­cov­er­ing the mis­rep­re­sen­ta­tion.

The em­ployer must also prove the qual­i­fi­ca­tions were ‘‘ es­sen­tial’’, or that the lack of qual­i­fi­ca­tions ‘‘ sub­stan­tially’’ changes things.

If the em­ployee has en­tered into a valid and bind­ing 90-day trial clause, the em­ployer will be able to dis­miss the em­ployer within the 90 days.

The em­ployer would not need to of­fer the em­ployee op­por­tu­ni­ties to come up to the re­quired stan­dard, and would not need to prove the rep­re­sen­ta­tions were es­sen­tial or sub­stan­tial.

How­ever, em­ploy­ees dis­missed un­der the 90-day clause will still need to be paid for any rel­e­vant no­tice pe­riod (if one ex­ists in their agree­ment).

If the em­ployee is un­able to per­form the role re­quired, and has lied about his or her qual­i­fi­ca­tions, it is pos­si­ble this would con­sti­tute se­ri­ous mis­con­duct.

An em­ployer may be able to dis­miss an em­ployee for that, par­tic­u­larly as lies about qual­i­fi­ca­tions di­rectly un­der­mine the em­ployee’s good faith em­ploy­ment obli­ga­tions.

It would be im­por­tant to in­ves­ti­gate the al­le­ga­tion thor­oughly, and to fol­low a clear and fair dis­ci­plinary pro­ce­dure, in­clud­ing giv­ing the em­ployee an op­por­tu­nity to re­spond to the al­le­ga­tion and to be ac­com­pa­nied by sup­port per­son at meet­ings.

The best pro­tec­tion is preven­tion.

The risk is less­ened if you con­duct dili­gent pre- em­ploy­ment checks of ref­er­ences and qual­i­fi­ca­tions.

Em­ploy­ment agree­ments should also be care­fully drafted to pro­tect the em­ployer against risk.

There are op­tions avail­able to em­ploy­ers placed in this un­for­tu­nate sit­u­a­tion.

How­ever, it is im­por­tant to seek ad­vice about the sit­u­a­tion to en­sure your re­sponse is ap­pro­pri­ate.

Col­umn cour­tesy of Rainey Collins Lawyers, phone 0800 733484. If you have a le­gal in­quiry you would like dis­cussed, email Alan on aknowsley@rain­ey­collins.co.nz.

Newspapers in English

Newspapers from New Zealand

© PressReader. All rights reserved.