Employee Background Check: A Cautionary Tale

Hiring is never an easy task. It’s not just about choosing a candidate, you’re entrusting someone to work in your organisation. But since we’re humans, and to err is human, handling employees is a tough task.

Employment relationships are bound by contract. So if you have an employee that you feel does not belong to your organisation, and you want to let them go, you need to justify that it is for just and reasonable cause. Because if not, the employee will have a right to claim unfair dismissal which can be very costly to defend.

BEFORE YOU HIRE...

Take the right measures to ensure that the employee is the right person for the job and not have issues that could bring trouble down the line such as:

• The employee may cause the workplace to be unpleasant and affect overall morale of coworkers.

• The employee may cause disruptions to the company’s business due to high absenteeism or lacking skills.

• When the time has come to terminate the employee, the employer must bear the risk of having to defend against claims of unfair dismissal.

Right now, there’s no foolproof way to assess a potential employee’s suitability, though it can be helpful to undertake proper vetting procedure.

Take the necessary steps to verify that the information given by the candidate / employee is accurate, make sure you do this BEFORE hiring. Yes, it’s obvious, but there are many cases out there where employers had overlooked this part in hiring.

A Case Example

This case in particular: Khoo Kim Loang and Shock Media Studio Sdn Bhd (Award No: 51 of 2018) is a good example of this point. Here’s the rundown of this case:

1. The company decided to conduct investigation after the employee started to exhibit signs of trouble such as poor attitude.

2. The investigation showed that the employee had lied in his resume by saying that he had worked for companies which were later found to have never existed.

3. As a result, the employee was terminated.

This case should be taken as a tale of caution for employers. Despite the employee faking his resume, the company still had to defend against the claim of unfair dismissal.

The company agreed to settle this case because most of the witnesses had already left the company and the other representatives of the company were too busy to attend the trial.

Despite the settlement, the Court found there was sufficient evidence to prove that the employee had lied in his resume which justified the termination.

Fun fact: it was also later found that the employee had been involved in 14 unfair dismissal claims filed against his former employers. All of the cases were settled out-of-court.

“It will do well for employers to carry out more thorough vetting of CVs submitted by prospective employees to save themselves time and money unnecessarily spent on litigation such as in this case […] CV fraud is on the rise, it is time for employers to check the CVs of prospective employees more thoroughly before making any job offers.”

In normal cases, a rational settlement of unfair dismissal claims will usually result in a simple award by the Court confirming the settlement and the withdrawal of the employee’s claim.

Bringing it all together

This brings us to the conclusion: Always carry out proper vetting exercise before making any hiring decisions (with regard to the candidate’s / employee’s right to privacy according to international law standards.

If you need more info about unfair dismissal cases, you can browse Industrial Court of Malaysia’s website for references. This is important to reduce the chances of hiring problematic employees and being engaged in unwanted litigation if things go sour.

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