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Falsification of job application: cause for dismissal?
A recent Ontario arbitration award has considered when an employer is justified in discharging an employee who has falsified an employment application. In Re Versacold Group and Teamsters, Local 419 (December 22, 1999), at issue was the dismissal of an employee who knowingly lied about his criminal past on a form he filled out to obtain a promotion.
The grievor had two years' seniority at the time of his discharge from Versacold, a large warehousing operation. He had previously been fired from his job with another warehousing operation for theft, and had served 60 days in jail for the crime.
When Versacold hired the grievor, it had not asked him whether he had a criminal record or why he had left his previous position. Versacold had its own considerable problem with losses due to theft and had hired investigators to identify the culprits. The grievor was not among those under suspicion.
When the grievor applied for a promotion, he filled out a form on which he denied having been convicted of a criminal offense. He was not the candidate chosen. When the falsification was later discovered by the employer, he was fired.
The arbitrator hearing the grievance noted that most of the case law on falsified employment applications concerned applications to obtain the job itself, not a promotion. Aside from this difference, the grievor's case also raised issues of the "materiality" of his falsification to the employment relationship. As the arbitrator explained:
"[A] 41-year-old person who claims to be 39 is dishonest, but where age is not material or relevant to the position, that dishonesty should not automatically lead to discharge. The same may not be true of a 17-year-old ... who claims to be 19 when applying for a posted bartender position, where age is material to an employee's legal ability to serve alcohol."
In this case, the employer's failure to investigate the grievor's background or to ask about his employment history had some impact on the materiality of the grievor's lie, particularly given that he had been working for two years without incident or concern. That having been said, the arbitrator made it clear that some discipline was in order - but not discharge. As noted, the grievor had two years' seniority and a clear record. When confronted by the employer, he had admitted his wrongdoing immediately. At age 46 and with his employment history, the arbitrator observed, his prospects for future good behaviour were promising, as the consequences for his future employability of being discharged yet again would be severe. Accordingly, the arbitrator substituted a six-month suspension for the discharge, and expressed the view that this penalty would serve as a warning to the grievor to be on his best behaviour in future.
For further information, please contact George Rontiris at (613) 563-7660, Extension 275.
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