Don’t be the author of your own misfortune
Lying on a resumé could be just cause, but the employer needs to do its due diligence when recruiting
Oct 7, 2013
By Stuart Rudner
If an employee lied about his qualifications during the application process, is that just cause for dismissal?
The simple answer — as is often the case when it comes to employment law — is “it depends.”
A clear misrepresentation will constitute dishonesty, and can justify summary dismissal. It may also justify rescission of the contract in some cases. That being said, there is an expectation employers will take reasonable steps to satisfy themselves the individual being hired is qualified.
On one hand, courts have confirmed, in cases such as Peterson v. Electro Sonic Inc., that by entering into an employment relationship, an employee implicitly warrants he is reasonably competent to perform the duties of the job for which he has been hired. By extension, being incapable of performing his duties would constitute a breach of contract, or, in the context of this discussion, just cause for dismissal.
On the other hand, Justice John Sproat, a former colleague and leading member of the employment law bar — and now a Justice of the Superior Court of Ontario — notes in his Employment Law Manual that despite the implied warranty of reasonable competence by the employee:
“The interviewing and hiring process demonstrates that the employer has also reached the conclusion that the employee has the required competence. It is, therefore, very difficult to persuade a court that the sole issue in a case is competence. In fact, in almost all cases, the allegations of incompetence will merge with other factors of greater severity.”
In Schafer v. Pan Matrix Informatics Ltd., a 1987 decision of the Alberta Court of Queen’s Bench held, in the context of an employee’s dishonesty during the hiring process, as follows:
“In my opinion there was justification for the dismissal of the plaintiff for cause by the defendant corporation. The plaintiff fraudulently misstated his qualifications when negotiating his position and terms of employment with the defendant corporation. In addition, the plaintiff falsely stated that he held a secure and senior position of employment with the DeVry Institute. The evidence establishes that the defendant corporation would not have offered a position of employment to the plaintiff had they known the truth about the behaviour, reputation and performance of the plaintiff at the DeVry Institute.”
Contract law makes a distinction between actual misrepresentations relating to the terms of an agreement or contract on the one hand and “mere puffery” on the other. The latter can essentially be seen as exaggerations which are not really relied upon by the other party. It is seen as analogous to “selling” as opposed to making representations. Such “puffery” will not be just cause for dismissal in most cases, as it did not induce the employer to enter into the employment relationship.
In Adams v. Alcroft, the Supreme Court of Canada considered the issue of what constitutes a material misrepresentation, as opposed to “mere puffery,” in the employment context. In that case, the plaintiff was hired as a veneer maker. In his letter of application, he stated that he understood “fully the making of such articles as you speak of” and that he had “mastered the entire principle of it.”
He also represented that he had access to competent machine operators, and that he currently held a good position with one of the largest veneering factories in the United States that he would be loath to leave. It turned out the statement regarding the plaintiff’s current employment was completely untrue. He had left his previous position before his interview with the defendant organization.
The trial judge found the plaintiff had “no practical working knowledge or experience.” His statements regarding his prior employment and his level of knowledge were “utterly fallacious and misleading.” Having made these determinations, the court then considered the nature of the position he had applied for, and his duties. Given that the misrepresentations were directly related to the specific qualifications and experience that the employer was seeking for someone in this position, the Supreme Court concluded the dishonesty of the employee at the time of his application warranted immediate dismissal when it was discovered.
Practically speaking, an employer that does not take the time to properly screen applicants and ensure the hire is well-qualified will generally be seen as the author of their own misfortune. Similarly, an employer will be hard-pressed to argue they would not have hired an employee if they knew the true nature of their qualifications when they are several years into the employment relationship.
However, if an employee lies about relevant qualifications, then the employer may have more remedies available to them. In order to protect themselves, employers should make sure they thoroughly review applications, confirm facts and check references. They should also ensure to include a clause in the contract establishing a probationary period during which they can properly assess the new employee’s ability to do the job.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at email@example.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.
Stuart Rudner is the founder of Rudner Law (RudnerLaw.ca
), a firm specializing in Employment Law and Mediation. He can be reached at firstname.lastname@example.org
, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.