Lies, damned lies and resumes

Lying on a resume can be grounds for dismissing an employee

It’s an unfortunate fact of the hiring process: in an effort to look as good as possible on paper, some people lie on their resumes.

Equally unfortunate is that many employers do not discover these misrepresentations until after the employee is hired. Some employers are under the impression there is nothing that can be done after the fact, but this is simply not true given that a material misrepresentation is just cause for dismissal.

The Supreme Court of Canada has made clear that dishonesty is not always just cause for dismissal. If that one act of dishonesty demonstrates the person is untrustworthy or dishonest, as opposed to showing a mere error in judgment, it may be grounds for dismissal.

In the case of an employee who has fraudulently misstated qualifications when negotiating a position and terms of employment, that dishonesty goes to the heart of the employment relationship.

Consequently the employee can be dismissed with cause because the duty of honesty was breached. Or the employer may attempt to remedy the breach through “recission” — essentially ending the employment contract because a contract term classified as a condition was breached. To achieve the latter, the case law is clear that the misrepresentation must have been material and must have induced the employer to hire the individual.

In Allcroft v. Adams, the Supreme Court of Canada confirmed the relevant considerations for determining whether an employee’s misrepresentations warrant summary dismissal are as follows:

•the particular knowledge and qualifications which are required by the employer;

•the employee’s actual representations regarding this specific knowledge and qualification; and

•the employer’s reliance upon these representations and the extent to which they were misrepresentations.

Mere exaggeration will not be something a court will find sufficient for summary dismissal. Likewise, where the potential candidate expresses an opinion during the interview, a court will likely not find this to support a case for just cause.

On the other hand, where the misrepresentations are material and the employer has relied to its detriment upon the misrepresentations, it is likely a court will find such misrepresentations sufficient to justify cause for dismissal. The case of Bridgewater v. Leon’s Manufacturing Co. illustrates this point.

In Bridgewater, the employee had greatly exaggerated his abilities and failed to disclose many aspects of his work experience. The employer dismissed the employee for cause on the basis of incompetence. The court concluded that had there been disclosure of “all relevant material in regard to his past employment, it is unlikely that he would have been hired for such a senior position with the company.”

Therefore it is clear any misrepresentations made during the hiring process which are discovered after the individual is hired may be relied upon by the employer to justify dismissal with cause. This includes not only misrepresentations on resumes, but also verbal misrepresentations as well. This is equally true regarding any misrepresentations discovered after the employee has been dismissed.

Ensuring the candidate has the skills and experience claimed

But if the employer knows about the misrepresentations and fails to act on this knowledge, it can’t rely on this argument later on. It is imperative for the employer to act quickly and carefully when addressing this issue. As a way to achieve this, it is recommended that employers take the following steps to ensure the candidate chosen for employment has the skills and experience claimed:

Call all of the references: Before the candidate is hired the employer should speak to the various references provided and ask questions about the candidate to elicit answers which verify the skills and experience being claimed on the resume.

Test the resume: During the interview ask the candidate to explain and expand on each of the skills listed to ensure he has performed the work.

Provide hypothetical scenarios: During the interview provide the candidate with hypothetical scenarios pertaining to the type of work she would be doing in order to determine whether she would be able to carry out the responsibilities required for the position.

For more information see:

Allcroft v. Adams, 1907 CarswellNB 113, 38 S.C.R. 365 (S.C.C.)

Bridgewater v. Leon’s Manufacturing Co., 1984 CarswellSask 214 (Sask. Q.B.)

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or nmacdonald@grosman.com.

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