The employment market today can be one tough customer.
According to Statistics Canada, there has been little overall employment growth in Canada since August 2013 and, in fact, employment has declined among some categories of workers.
Perhaps it is due to a competitive employment market, an overconfident and self-important personality trait, or possibly even an honest attempt at obtaining gainful employment; but if you misrepresent your qualifications and expertise to potential employers, you must be wary of the possible consequences of these representations, even if they are made with the best of intentions.
An employment relationship is based on the long-standing virtues of trust, honesty and good faith. A breach of these obligations by either the employer or employee can justify immediate termination of the relationship. An employee’s obligations prior to hiring do not require him or her to divulge information about prior wrongdoings to their potential employers. However, exaggerated or false representations as to one’s own capabilities or credentials can constitute cause for immediate dismissal without notice, once this is discovered by the employer.
The right of an employer to terminate employment based upon a misrepresentation by the employee prior to hiring is supported by the Employment Standards Act, which states that an employer is not liable for any severance upon employee termination where termination is for just cause. The case law supports fraudulent misrepresentation by an employee as being grounds for just cause in certain circumstances.
The representation made must have four characteristics: (1) the representation must be made directly to the employer, (2) the representation must be untrue, inaccurate or misleading, (3) the employee must have been deliberate or negligent in making those representations, and (4) the employer must have relied on those misrepresentations when deciding to hire the employee.
Employees should be aware of the cost of making a misrepresentation to their potential employer during the hiring process. In the case of Clark v. Coopers & Lybrand Consulting Group, an employee misrepresented his academic credentials, which his employer relied on when hiring him for a consulting contract. When Clark brought an action against his employer for wrongful termination, the court not only dismissed Clark’s claim for notice but ordered that Clark was liable for some of the expense related to arranging for his replacement, as well as additional damages for the loss of business opportunities.
Here are some practical tips for employers on how to avoid becoming a victim of employee misrepresentation:
Keep and maintain written documentation of all discussions with potential employees;
Where possible, have all discussions and interviews made in the presence of more than one representative of the employer;
Investigate and verify all potential employee representations, background checks, and references.
Sheri is an associate lawyer with RDM Lawyers LLP in Abbotsford. Questions or comments about this article can be sent to firstname.lastname@example.org.