KEY POINTS:
I recently employed someone who I thought was going to be perfect for the job. The reason I was so sure was because their CV was excellent and they interviewed really well. They seemed to have everything I was looking for and even the one referee I rang could vouch for their ability. It was a different story once they started. I quickly saw that they had exaggerated their skill level by a huge amount and, in fact, are not really able to perform the tasks that I want them to with any efficiency or effectiveness. Do I have any comeback on this? Isn't this a case of false advertising? I'm not sure that I even believe the referee.
A job applicant does not have to volunteer information that is likely to discredit or harm his or her chances of employment. But, if an employee volunteers information or responds to the employer's enquiries, they must do so truthfully.
Substituting real employment history with a fictional one can justify dismissal. But merely exaggerating one's experience is not in itself enough to substantiate a dismissal. In other words, not every misstatement of a material fact given in a pre-employment situation will form reasonable grounds for an employer to cancel the employment agreement.
The issue of misrepresentation in an employment context is governed by the:
* Employment documentation.
* Employment Relations Act 2002.
* Contractual Remedies Act 1979.
Like all other dismissals, a dismissal for a pre-employment misstatement must be justifiable and carried out in a fair manner. If the procedure is unfair, then the justification of the dismissal will be questioned. Employers can also dismiss employees in the situation where the actual effect of the misrepresentation is so substantial that it makes the benefit of the employment agreement substantially different from that which the parties contracted for - perhaps because the employee can't actually do the job they have said they could do.
In your situation, it appears that the employee has exaggerated his/her skill level so it could be difficult to justify a decision for dismissal. If the employee claimed to be able to do things - use a particular computer program which in fact they could not - that would be a clear misrepresentation justifying dismissal.
If the employee had claimed to have worked for a particular employer but never did, that would be a lie and a basis for dismissal.
You have two options. First, you could invite the employee to a disciplinary meeting for the alleged misrepresentation. At the meeting, you should explain what you believe they have claimed when they were recruited and say why you believe this was a misrepresentation. Give them the chance to further address this and to respond. If, after hearing from them you are able to conclude there was a serious or fundamental misrepresentation about what the employee could do, you may dismiss the employee.
Second, you could invite the employee to a disciplinary meeting regarding his/her poor performance. You should follow the usual fair process and inform the employee that he/she is not carrying out duties to the required level.
Warnings for poor work performance should be explicit and fair. You should describe how the employee's behaviour is unsatisfactory, give clear information about what improvements will meet your requirements and how improvement will be measured. You should then give the employee time to improve his/her performance.
If the employee is still not performing to the required standard then you can give the employee a final warning in writing. Prudent employers usually give a first warning and, if necessary, confirm a second warning in writing. You will need to abide by any disciplinary procedures contained in the employment agreement.
These problems point out the importance of precision when recruiting. Employers need to ask the right questions and seek evidence of claims.. You should also consider practical testing of applicants.
