The competitiveness we are currently witnessing at a business and professional level means that jobseekers will do (almost) anything to grab the recruiter’s attention when analyzing their CVs, even though this may require making their professional background and training more suitable for the job they are applying for.
Depending on the degree of analysis and time spent analyzing CVs, these “adaptations” can go more or less unnoticed, which means that in many cases the old adage that a lie has a short leg is fully applied, because it is becoming increasingly common for companies to check a worker’s professional background with a degree of certainty and efficiency, especially if they are applying for particularly important positions.
Putting false information on a CV or lying at a job interview, such as previous professional experience, training or hard skills that don’t correspond to reality, can jeopardize one of the essential elements of the employment relationship – trust – or even lead to the employment contract being null and void, for example in the case of a driver who doesn’t hold a document that qualifies them to carry out the activity – article 117 of the Labour Code.
Although this framework is well-established, the truth is that case law can be surprising in its decisions. Let’s see:
The Superior Court of Justice of Valladolid, in a decision dated 19.04.2024, ruled that the dismissal of a worker for falsifying information on her curriculum vitae was not sufficiently serious to justify dismissal for just cause. The employee was dismissed for falsifying her work experience, after discrepancies were found between the employee’s curriculum vitae and the information on her professional career that the company requested and the employee voluntarily provided.
The court ruled that the company’s request for information on her professional career contravened the personal data protection regulations, since requesting information on workers’ professional career without their voluntary consent and then using it to justify disciplinary dismissals is contrary to the dictates of good faith in contract and a violation of the fundamental right to protection of workers’ personal data.
Now looking at our system, how would a Portuguese court decide?
Although the issue of personal data is not new, it has gained particular prominence in recent years, with greater concern on the part of national jurisprudence and doctrine. Both Regulation (EU) 2016/679 of the European Parliament and of the Council, of April 27, 2016, and Law 58/2019, of August 8, provide for the protection of personal data as a fundamental right, elevating protection to the constitutional level in Article 35 of the Constitution of the Portuguese Republic (CPR). This means that any processing of personal data must have the explicit consent of the data subject, in order to guarantee effective control of their data and its use.
In terms of employment, article 106 of the Labor Code, under the heading of information duties, lays down information duties for both the employer and the employee with special relevance to the employment relationship and the provision of professional activity. Article 126(1) of the LC also stipulates that the employer and the employee must act in good faith when exercising their rights and fulfilling their obligations. In other words, these duties of information presuppose compliance with the general principle of good faith, which reveals certain objective requirements of behavior – of correctness, honesty and loyalty – imposed by the legal order, requirements of reasonableness, probity and balance of conduct, requiring certain modes of action, both in the pre-contractual phase and throughout the performance of the contract, as well as upon termination – see art. 102 of the LC.
In the Portuguese judiciary, the Guimarães Court of Appeal, in a judgment of 02.05.2016, upheld the view that [the] issuing of a false declaration, although in breach of the duty of good faith, is not such as to make it impossible for the employment contract to continue, although there are decisions to the contrary, in which it was held that A.’s behavior constitutes just cause for dismissal. who, having presented a medical certificate justifying an absence on a certain day, tampered with it by adding another day to justify the absence he had given.
The existence of just cause for termination of employment depends on the cumulative verification of three conditions:
- the culpable behavior of the employee
- the impossibility of maintaining the relationship; and
- the causal link between the behavior and the impossibility.
It will always be said that if the employee has knowingly omitted or misrepresented the truth of the facts with a view to deceiving the employer, in order to gain an advantage from such behavior, proving harmful and jeopardizing the maintenance of the employment relationship, the employee may be disciplined and the employment relationship may be terminated.
Gonçalo Caro @ DCM | Littler
