Misrepresentation on resume and breach of contract not enough for just cause

Salesman misrepresented some of his experience and breached clause in contract but deserved notice of termination after not making any sales

A British Columbia employer did not have just cause to dismiss an employee without notice, even though the employee lied on his resume and had no results while working for the employer, the B.C. Provincial Court has ruled.

In August 2013, David Lura, 61, responded to an advertisement posted by Jazz Forest Products, a softwood professional supplier in Abbotsford, B.C., for a lumber sales representative. Lura provided a resume that stated he had worked for 26 years for another lumber company that gave him “in-depth knowledge of the product, …extensive experience in sales and marketing and customer service and satisfaction.” He also claimed to have good computer skills.

Lura told Jazz he ran his own company, Wood Source Forest Products, which was successful for a period of time but he “wound the business down recently after the person financially backing me passed away.” The resume listed his employment experience as at the other lumber company from 1974 to 2002 and with his own company from “February 2002 to present.”

In the two years prior to applying for the job at Jazz, Lura had actually worked as a heavy haul truck operator in Fort McMurray, Alta., and as a security guard in Abbotsford.

The president of Jazz testified that Lura gave him the impression he was still operating his own forest products company at the time he applied to Jazz. For this reason, it was believed Jazz couldn’t call Lura’s previous employer for a reference because Lura was self-employed. When the company asked Lura when he could start work with Jazz, Lura replied that he needed two weeks to wrap his business up, to which Jazz agreed. The Jazz president testified that if he knew Lura was actually working as a security guard at the time, he wouldn’t have been hired because he was “no longer in contact with the industry.”

Upon Lura’s hiring, he signed an employment contract effective Oct. 7, 2013, which had no specific termination provision other than a requirement to return “all of the company’s data such as email or sales data,” computers, and mobile devices at the time of termination of employment. The contract stated that it was the entire agreement and there were no oral or written arrangements outside of it. There was no mention of a probationary period.

No sales in first month of employment

During his first month with Jazz, Lura didn’t make any sales, which frustrated the company's president. Lura had some discussions with a buyer in Australia, but it turned out the buyer was an existing customer.

The president told Lura he had six weeks to improve his performance, though there were no official warnings, written or verbal, indicating Lura’s job was in jeopardy. Though it was believed Lura was trying to get something done, it was becoming apparent to the company that it couldn’t carry a salesperson who wasn’t making any sales on a regular salary. Lura felt the company’s prices weren’t competitive and this was contributing to his lack of results, but Jazz had never had a salesperson who couldn't make a sale in an entire month.

On Nov. 15, 2013, Lura met with the president to discuss his lack of sales. The president told him he couldn’t keep him on as a salaried salesperson if he wasn’t making sales, so he terminated Lura’s employment but offered him the option of working from home and selling Jazz products through his own company. Lura would receive no salary but a higher commission on any sales. The president gave Lura a couple of days to consider the offer.

Lura declined the offer and never returned to Jazz. He then had his lawyer send a demand letter for wrongful dismissal.

After Lura stopped working at Jazz, his email account was checked to see if there were any sales requests or other matters that required following up. However, Lura’s inbox, sent message folder and deleted message folder were all empty. Lura testified he had forwarded the emails to his personal address and deleted them when he was terminated. In the process of forwarding the emails, they were deleted from his Jazz email, he said. He claimed he didn’t return the information because Jazz didn’t ask for it.

The court found Lura was “not completely forthright on a number of issues,” including his resume, which “left the impression that (he) was not very far removed from the lumber industry” when in fact he had not been involved for two years. Lura didn’t mention his actual employment as a truck driver and security guard, while indicating he had would down his own company “recently.” This led Jazz to think it was hiring “someone with fresh connections to the lumber industry,” said the court.

The court also found Lura was being dishonest when he said all his emails were deleted when he forwarded them to his personal account. The court made a point to say anyone who has used email would know this doesn’t happen unless a person consciously deletes the emails on purpose. In addition, this claim goes against Lura’s
representation of himself as having good computer skills in his resume, said the court.

“(Lura’s) logic that it was acceptable for him to delete all of his email because he was never asked to return it is difficult to understand,” said the court. “He had signed a contract in which he agreed not to keep the email from (Jazz).”

However, though Lura demonstrated dishonesty in his conduct, both before his hiring and after his termination, the court found this dishonesty did not go “to the core of the employment relationship to a degree that warrants his dismissal for cause.” Lura misrepresented the currency of his ties to the lumber industry, but he did have extensive experience in it for more than 25 years. There was also no indication that his lack of sales was the result of not showing up for work or not trying.

In addition, there was no evidence the loss of his email adversely affected Jazz in any way, said the court. This breach of the employment contract by itself was not sufficient to provide just cause, said the court.

The court found two months was sufficient notice of dismissal. Lura was in a sales job with no management duties and had only been employed for less than two months. He was not induced to leave a secure or lucrative position. The court said it may have found one month’s notice would be appropriate, but since Lura was 61 years old and similar employment did not seem to be readily available, Jazz was ordered to pay him two months of salary, vehicle allowance and medical allowance, which totaled $7,000 before subsequent earnings in December 2013 and January 2014 were deducted. See Lura v. Jazz Forest Products (2004), Ltd., 2014 CarswellBC 3161 (B.C. Prov. Ct.).

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