Is lying on the resume just cause for dismissal?
Question: If an employer discovers, sometime after hiring, that an employee misled it on a job application, can that be just cause for immediate dismissal?
Answer: I am often asked what can be done about such “pre-employment dishonesty.” In 1987, 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; they are seen as “selling” as opposed to making representations. Such “puffery” will not be just cause for dismissal in most cases.
In the 1907 case of 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 employee 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.
The trial court found that the employee’s statements regarding his prior employment and his level of knowledge were “utterly fallacious and misleading.” 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 that immediate dismissal was appropriate.
Based upon the analysis in Alcroft and other cases, it seems fair to say that if the misrepresentation relates specifically to an applicant’s qualifications for the position, it is more likely that it will provide just cause for dismissal. If the subject of the dishonesty is more tangential to the application, the dishonesty may not be considered to be as egregious.
One of the factors that will be considered by the courts is the nature of the position that is being applied for. The degree of trust required will vary depending upon the employee’s position within the company.
Those in managerial or fiduciary positions will be expected to maintain a level of honesty greater than those in non-fiduciary positions.
The bottom line is that, like other potential grounds for dismissal, much will depend upon the specifics of the case. The nature of the position applied for, and of the particular misrepresentations, will certainly be relevant. The employee’s actual job performance can also be an important factor. It will be difficult to argue that an individual misled the organization about her qualifications and should therefore be dismissed if the evidence shows that she has ably carried out her duties over an extended period of time since being hired.
For more information see:
•Adams v. Alcroft, 1907 CarswellNB 113 (S.C.C.).
Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (905) 415-6767 or email@example.com.