Can You Dissolve a Labor Contract, Because of The False Personal Information

Mr. Kang was the vice general manager of Company A. One day, the company found that he had provided the false personal information about education background, so it dissolved the labor contract with him. Later on, Kang brought the dispute to the labor arbitration committee. The committee determined that the company failed to require Kang to provide any relevant documents to prove his education background, or verify Kang’s education background with the relevant departments. Finally, Company A was deemed as dissolving the labor contract illegally.

According to Article 8 of the ‘Labor Contract Law’, the employer has the right to know the basic information of the employee which is directly related to the labor contract, and the employee shall faithfully provide such information. How to define the ‘basic information which is directly related to the labor contract’? Currently, there is no law and regulation or judicial interpretation which has defined it clearly. In practice, the employer would ask the employee to provide the basic information, such as the education background, working experience, contact information, health and etc.. Some employers would even ask for the information related to the marital status, family members and so on.

In the judicial practice, it is not rare that the employer fails to obtain the support of the labor arbitration committee or the court, when the employer has dissolved a labor contract for the reason that an employee has provided the false personal information. Because those judicial departments have considered two aspects as follows.

Firstly, the personal information shall be directly related to the labor contract, that is, whether such personal information has a substantial effect on the performance of the labor contract. Generally speaking, those personal information shall include the education background, working experience, certificates or health status for some special positions, the recommendation letter of the former employer and etc.. It is obviously that the above information could prove the employee’s ability and working proficiency. If an employee has provided the false personal information on such aspects, normally the judicial departments would support the employer. However, for those personal information, such as the marital status, fertility status, health and so on, which are not directly related to a labor contract, while an employee has provided the false personal information, normally, the judicial departments would not support the employer. There are 3 reasons: (1) such information is not directly related to a labor contract; (2) such information might be the employee’s privacy, so the employee is entitled to refuse such request; (3) such request might be deemed as employment discrimination. For example, Shanghai Huangpu People’s Court has supported the employee in a case, in which the employer, an English training institution, has dissolved the labor contract with the employee, for the reason that the employee had provided the false personal information on her fertility status.

Secondly, the employer shall fulfill the duty of care and inform. Such as, the employer shall insert the relevant personal information into the condition of employment; verify the relevant personal information; inform the consequence of providing the false personal information and etc.. While an employer has fulfilled the duty of care and inform, it could deal with labor contract with the employee who has provided the false personal information in two ways: (1) Article 26 of the ‘Labor Contract Law’ could be applied, and the employer could claim for the invalidation of the labor contract due to the employee’s deception; (2) if the internal rules and regulations have stipulated that providing the false personal information would be deemed as the employee has seriously violated the internal rules and regulations, then the employer could dissolve the labor contract according to Article 39 of the ‘Labor Contract Law’.