Canadian Employment Law Today

November 12, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email with Stuart Rudner Ask an Expert RudneR Macdonald ToronTo Canadian HR Reporter, a Thomson Reuters business 2014 2 | November 12, 2014 Ask an Expert Have a question for our experts? Email 2 | November 12, 2014 answeR: Generally speaking, the answer to this question will be "no." Poor performance reviews are certainly helpful in establish- ing that an employee was aware her per- formance was not meeting expectations, which is important. An employer seeking to summarily dis- miss an employee due to incompetence or poor performance will generally have to es- tablish the following: • It has established reasonable, objective standards of performance • e employee has failed to meet those standards • e employee has had warning that she has failed to meet those standards and has had warning that her job will be in jeop- ardy if she continues to fail to meet those standards • e employee has had a reasonable op- portunity to correct the situation. In the context of this question, the third item is critical. While the employee would presumably know her performance is unsat- isfactory due to the poor review, there must be a clear warning that her job is in jeopardy. In other words, the employee must be told that failure to improve will lead to dismissal. Typically, that will not be stated in a perfor- mance review. As such, it will be difficult to proceed with dismissal for cause in the ab- sence of clear warnings of the consequences of a failure to improve. e employer should make the employee aware of the risk of a failure to improve and then work with the employee to help her do so. Our courts will expect that the employer offer some reason- able amount of coaching, training, or other assistance. A Performance Improvement Plan is usually an appropriate mechanism to use before proceeding with dismissal. Employee found to have lied on job application 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: is question is related to the first above, since lies on a resume can result in the hiring of an employee that does not per- form as expected. I am often asked if an applicant's lies on an application, or during the interview pro- cess, will serve to "nullify" the employment agreement that was subsequently entered into. In other words, where an employee is found to have misrepresented or exagger- ated her qualifications in order to obtain employment, can she be summarily dis- missed when the dishonesty is discovered? As usual, the answer is "it depends." e 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 qualifica- tions, others may be more tangential. ere 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 con- stitutes a material misrepresentation, as op- posed to "mere puffery, in the employment context. In that case, the employee was hired as a veneer maker. In his letter of ap- plication, 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 regard- ing the applicant's current employment was completely untrue. He had left his previous position before his interview with the de- fendant organization. e 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 deter- minations, 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 war- ranted 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 consid- ered by the courts is the nature of the posi- tion being applied for. e degree of trust required will vary depending upon the employee's position within the company. ose in managerial or fiduciary positions will be expected to maintain a level of hon- esty greater than those in non-fiduciary positions. By way of example, misrepre- sentations 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.). Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business (see for more information or to order your copy). He can be reached at srudner@rudnermacdonald. com. Bad performance reviews and warnings Question: Can a bad performance review qualify as a warning in a progressive discipline scheme? If a review states performance or attitude needs improvement and is unacceptable but doesn't indicate any consequences, can it be considered a warning? If the misrepresentation relates to an applicant's qualifications, it is more likely it will provide just cause for dismissal. If it is more tangential, it may not be considered to be as egregious.

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