Author: Howard Levitt
Publication: National Post
If you mislead an employer to obtain a position, you not only risk losing the job, you may end up in court.
It’s an employer’s market now with tens, even hundreds, of applicants vying for every position available. So if you were fired for performance issues and so far are unsuccessful in finding work, and your finances are quickly depleting, what are you do do?
If you tell the truth, you could very well be unemployable. So when you finally obtain an interview, you lie, perhaps stating you resigned. You pray no reference check is conducted and the new employer doesn’t learn, through the industry, of your perfidy. They don’t. You are awarded the job with a good base salary and a bonus. You perform marvellously. Everyone wins.
That is, until someone in your former company makes a snide remark about you to someone in the new one. Your lie unravels. Your new employer doesn’t want a dishonest employee and fires you, stating, if the company had known the truth, you never would have been hired.
When you sue, the company counterclaims for your bonus, claiming it never would have offered this bonus had it known how weak your bargaining power actually was.
Or maybe you inflated your academic or other qualifications. Or perhaps inflated your previous remuneration to negotiate a higher salary. According to a Stanford University study conducted some years back, more than 90% of resumes, in some respect or other, contain false or misleading information, ranging from slight embellishment to outright fraud.
“Doctor” Richard Clark applied to join Coopers Lybrand’s consulting practice in Ottawa to head and revitalize its management section. Coopers didn’t hire professionals without university degrees. In a resume provided to the firm and later sent out as part of its “pitches” to potential clients, Dr. Clark purported to hold a BSc, MSc and PhD.
Two years after his hiring, Coopers Lybrand learned he held none of these degrees and immediately fired him, he sued for wrongful dismissal. Not only did he lose the case, which proceeded to the Ontario Court of Appeal, but he had to reimburse the firm $47,000 for lost work when clients discovered Clark was not who he said he was, as well as for Coopers’ expenses for a temporary replacement, including that replacement’s lodging and even dry cleaning bills.
Victor Schaeffer was never even asked about his previous employment when he was hired as president of Computer Career Institute in Calgary. He demanded a salary of $100,000, stating that his position with his previous employer DeVry Institue had been secure when in fact he was about to be terminated. He also said there were no operational problems at the time of his departure and claimed the three months’ severance DeVry had paid him was a bonus.
Like Coopers, the Court found the Computer Career Institute would never have offered him employment if it had known about his behaviour, reputation and performance at DeVry. As well as winning its case, Schaeffer’s employer was entitled to the return of the shares it had issued him, since it never would have offered them had it known the truth.
Employees beware. If you mislead an employer to obtain a position, you risk losing the job and even some of its perquisites if the employer ever learns of it, even if they were happy with you in the interim.
However, an employer cannot sit on its rights. If they learn an employee lied when he was hired, they can’t wait until they are unhappy and fire him then. Employers must act immediately or they lose their right to assert cause later.
Even if an employer learns of the lie years after the firing, before going to trial in a wrongful dismissal action, its defence can be amended to plead cause then. That’s what I did while acting for Rogers Cable when it was sued by Alan Cornell. He submitted a resume on his former employer’s stationary, applying for a job at Rogers in Brantford, stating that his employer was transferring him to British Columbia. In fact, he already had been dismissed. Three years after he had been fired by Rogers, we learned of this and amended the defence. The Court held that it was cause for his discharge, independent of Rogers’ actual cause.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada, soon to be released.