By Howard Levitt
There is a difference between inconsequential embellishments and outright fraud
Is Mary Ellen Turpel-Lafond a charlatan and a dispenser of false claims, or is she a victim of false allegations? And was her career advanced, at least in part, by her now-disputed claims of aboriginal status and lofty academic accomplishments?
Turpel-Lafond claims to be a Cree Indian raised in poverty in Norway House, hundreds of kilometres north of Winnipeg. Her resumés over the years have showed her as having a Master of Laws (LLM) from Cambridge and Doctor of Juridical Science from Harvard.
But an investigation by the CBC (please don’t entirely defund it, Pierre) has suggested she was born in Niagara Falls of parents of European descent and has no Cree heritage at all. While apparently denying the CBCs allegations, she refuses to produce any proof to the contrary, stating essentially that they are confidential records.
When the CBC contacted Cambridge, it had no record of her earning an LLM but only a diploma in international law. As an academic herself, she would obviously appreciate the difference between an LLM and a diploma. Her degree at Harvard was also earned years after she first claimed to have it when applying for a job, the CBC found.
When the CBC contacted Cambridge, it had no record of her earning an LLM but only a diploma in international law. As an academic herself, she would obviously appreciate the difference between an LLM and a diploma. Her degree at Harvard was also earned years after she first claimed to have it when applying for a job, the CBC found.
Similar situations arise, not infrequently, in the workplace.
There’s an old Stanford study showing that the majority of employees are not entirely truthful on their resumés. But there is a difference between inconsequential embellishments and outright fraud.
In 2002, Richard Clark sued the consulting group Coopers and Lybrand for wrongful dismissal and an unpaid bonus which he had undeniably earned through his achievements. It fired him when, while vetting him for partnership, it learned that he did not have the PhD he listed when first applying for employment.
His losses were manifold. He not only lost his claim for dismissal but was denied his bonus on the basis that he would never have been eligible for the bonus without the falsified degree. More significantly, Coopers and Lybrand succeeded in its counterclaim for fraudulent misrepresentation, obtaining damages against him both for its initial recruitment expenses and the business it lost as a result of having to fire him.
In an early case in which I acted for the employer, an Ontario court found Rogers Cable could dismiss an employee with cause because he lied about his background and his credentials. This was allowed even though it had nothing to do with the reason he was actually fired. It was an early case supporting the principle that cause that is subsequently ascertained can be relied upon by a company even if the employee is discharged for unrelated reasons.
It is not only lies that can be cause for discharge. Especially if you are a fiduciary, failing to disclose matters of import when hired can be cause when discovered. In one case, Canadian Pacific fired an in-house counsel because he did not volunteer, even though it was not asked, that he was under RCMP investigation for influence peddling at the time that he was hired. As a fiduciary, the court deemed it his obligation to disclose matters that would obviously be relevant to his new job.
But does every lie or non-disclosure in the hiring process lead to the right for an employer to dismiss an employee whenever it learns of it?
In order for it to be cause for discharge, the lie must be material to the hiring. In other words, the company must convince the trial judge that it would not have hired this employee but for the misrepresentation. Also, the company cannot learn about the deception and silently sit on it until it wishes to fire the employer at some later date.
Another point of interest is that, in my own practice, I have sometimes learned of these lies during my investigation after an employee was fired for unrelated reasons and then sued a client for dismissal. As I have noted before, employers can always rely on just cause which it learns of, for the first time, after the firing.
These tales make it imperative that employees have exhaustive checklists when hiring to later establish that employees misrepresented relevant facts so as to establish later cause for discharge. And it is an important caution to employees in glass houses who begin throwing stones.