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You have hired an employee who appears to be perfect on paper, only to later discover that they have misrepresented or deliberately withheld information about their qualifications, employment history or problematic past.

A simple and often overlooked way of mitigating unfortunate surprises like these is conducting pre-employment checks to verify whether a candidate is as suitable, qualified and impressive as their resume or interview has portrayed them to be.

Pre-employment checks are particularly important for candidates seeking employment in a certain type of role (i.e. senior, management or financial positions) or in a certain type of industry (i.e. work with children or persons with a disability).

The types of pre-employment checks employers may wish to consider include reference checks, qualification checks, past employment checks (including confirming a Statement of Service), pre-employment medicals, licence checks and/or criminal history checks.

What can go wrong in the absence of pre-employment checks?

Employers often discover that an employee was dishonest or made misrepresentations during the recruitment process when it is too late - for example, after the offer of employment is accepted and the employee has engaged in misconduct or has demonstrated that they are unable to perform the inherent requirements of their role.

Not only do these types of post-recruitment discoveries strike at the trust and confidence of the employment relationship, but they also have the potential to place an employer at legal, reputational and financial risk.

Consider, for example, an employer who discovers that its Financial Officer has been transferring sums of money to their personal bank account under the guise of creditor payments. Further investigation reveals that this employee has a criminal history and was terminated by their previous employer for fraudulent activity.

Consider also an employee who has demonstrated a pattern of poor conduct and behaviour not long after they commenced employment. The employer conducts a Google search which reveals that the employee has been involved in several unsuccessful unfair dismissal claims against previous employers, all of which related to similar poor conduct and behaviour.

Had the employers in these examples conducted the appropriate pre-employment checks (such as a past employment check, criminal history check or even a simple Google search), these types of matters may have formed part of the employer’s consideration in determining whether the employee was the most suitable candidate for the role.

What can an employer do when an employee has been dishonest during the recruitment process?

Any evidence of dishonest or misleading information relied on by an employee to secure a role may form grounds for disciplinary action, including termination of employment depending on the severity and reliance on such non-disclosure.

In Cook v State of Queensland (Queensland Health) [2024] QIRC 214, the Queensland Industrial Relations Commission (QIRC) was required to consider an appeal brought by an employee against the decision of his employer, Queensland Health to dismiss him due to misleading and/or incomplete information he had provided during its recruitment process.

The employee worked in several managerial roles during his tenure with Queensland Health but was most recently employed in the position of Director of Program Performance. To secure these roles, the employee provided a CV which detailed his work history and performance achievements as the CEO of his previous employer.

Queensland Health’s decision to terminate the employee was due to his failure to disclose a ruling of the Federal Court of Australia in 2021 which found that he had engaged in unconscionable conduct as CEO of his previous employer, which resulted in him being penalised $250k and disqualified from managing corporations for three years.

Queensland Health held the view that the performance achievements relied on by the employee to secure his role were attributable to the unconscionable conduct found by the Federal Court.

The employee submitted before the QIRC that his failure to disclose the ruling was an “inadvertent oversight” and had Queensland Health requested information about his civil law history during its pre-employment checks, he would have obliged the ruling.

However, the QIRC disagreed and found that it was open to Queensland Health to determine that the employee’s failure to mention these findings during its recruitment process was misleading and did not constitute a complete and accurate summary of his work history.

The QIRC emphasised that the employment relationship is one which requires trust and confidence, adding further at [51] that:

“A CV is taken to be an honest reflection of a person’s employment history, and although there may well be errors, any representations that intentionally mislead a potential employer are outside the bounds of accepted standards.”

The QIRC therefore found that it was reasonable for Queensland Health to determine that the employee’s conduct during its recruitment process was misleading and constituted misconduct warranting dismissal.

Lessons for employers

Pre-employment checks are an effective form of due diligence undertaken by employers to minimise the risk of adverse discoveries being made about an employee’s representations (or lack thereof) during the recruitment process.

In addition to conducting pre-employment checks, employers should consider whether their employment contracts specify that an employee’s employment may be terminated if any warranties relied on to secure the role are not true and correct. Having a clause like this will prove useful in the event post-recruitment discoveries are made and the employer wishes to take disciplinary action against the employee.

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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.‍