Is it too late once employee is hired?
Question: If an employer discovers after hiring that an employee lied on her resume, can it be grounds for dismissal even if the employee is doing a good job?
Answer: This question is related to the first above, since lies on a resume can result in the hiring of an employee that does not perform as expected.
I am often asked if an applicant’s lies on an application, or during the interview process, will serve to “nullify” the employment agreement that was subsequently entered into. In other words, where an employee is found to have misrepresented or exaggerated her qualifications in order to obtain employment, can she be summarily dismissed when the dishonesty is discovered? As usual, the answer is “it depends.”
The reader’s question adds an important consideration: the employee is doing a good job. In that case, the basis for dismissal is far more limited than situations where the employee overstates her qualifications and is unable to perform as expected.
Like the law relating to dishonesty more generally, the mere fact that an employee may not have been entirely honest in her application will not automatically justify summary dismissal. A contextual approach must be adopted, and part of the analysis will include the nature of the dishonesty or misrepresentation in question. While some representations may go right to the heart of the employee’s application or qualifications, others may be more tangential. There is a recognition, if not an expectation, that people may exaggerate somewhat in their resume, seeking to paint themselves in the best possible light. Behaviour will have to go beyond that level of dishonesty to even be considered as just cause for dismissal.
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 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 he had “mastered the entire principle of it.” He also represented that he had access to competent machine operators, and he currently held a good position with one of the largest veneering factories in the United States that he would be loathe to leave.
It turned out that the statement regarding the applicant’s current employment was completely untrue. He had left his previous position before his interview with the defendant organization. The trial judge found that 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 the duties that he would be responsible for. Given that the misrepresentations were directly related to the specific qualifications and experience the employer was seeking for someone in this position, the Supreme Court concluded that the dishonesty of the employee at the time of his application warranted immediate dismissal when it was discovered.
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 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 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. By way of example, misrepresentations made by a CEO in the course of her application are likely to be treated more severely than those made by a clerical or janitorial employee.
For more information see:
· Adams v. Alcroft, 1907 CarswellNB 113 (S.C.C.).
