Is overstating one’s credentials as a salesperson and then failing to complete a single sale of the employer’s wares within 40 days of commencing employment “just cause” to terminate an employee’s employment? As infuriating as it may sound to some employers, according to a decision from the Provincial Court of British Columbia, Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 247 (CanLII), the answer is “no, it is not just cause.”
The case concerned an action brought for wrongful dismissal damages. The plaintiff employee claimed that he had been wrongfully dismissed from employment and sought six months pay in lieu of reasonable notice. The defendant employer defended, taking the position that the employee had given it just cause for dismissal.
As set out in the court’s reasons for decision:
 In August of 2013, the Defendant posted an advertisement on the website of WorkBC, advertising for applicants for the position of its Lumber Sales Representative. On August 16, 2013, the Claimant sent an email to the Defendant applying for the position. In the email, the Claimant attached a resume and made the following representations about his qualifications for the position:“During my 26 year career with MacMillan Bloedel/Weyerhauser, I have had the opportunity to sell and market forest products throughout the world, including North America. I had in-depth knowledge of the product, have extensive experience in sales and marketing and customer service and satisfaction. I have good computer skills and an aptitude for numbers. I am hard-working, have a very strong work ethic and can handle lots of pressure situations. “When the lumber industry was at its lowest I started my own company, Wood Source Forest Products Inc. and was very successful for a number of years. I wound the business down recently after the person financially backing me passed away.”
 The resume attached to the email is undated. It states that the Claimant was the Sales Account Manager, North American Sales, for the Weyerhauser Company Limited (formerly MacMillan Bloedel Ltd.) from 1995 to 2002 and that the Claimant was employed with that company from 1974 to 2002. The resume lists the Claimant’s most recent employment as being with Wood Source Forest Products Inc. from February 2002 to “present”.
 In the two years prior to being hired by the Defendant, the Claimant worked outside of the lumber industry. He worked as a heavy haul truck operator in Fort McMurray, Alberta, at a nursery in Abbotsford, and as a security guard in Chilliwack. When he applied for the position with the Defendant, he was working for Paladin Security as a security guard and had been working in that position since September of 2013.
After Jazz Forest Products hired Mr. Lura, however, it became clear that he may not have been wholly truthful on his resume. Moreover, difficulties soon emerged. According to the decision, Mr. Jasvir Binning, President of the Defendant, testified that he believed that the plaintiff “was trying” but that the defendant could not carry a salesperson at a cost of $3500 a month when the salesperson was not selling anything.
As further set out in the court’s reasons:
 By November 15, 2013, the Claimant had been working for the Defendant for 40 days, but he had not made a single sale. The Claimant believes that this was because the Defendant’s prices were not competitive. The Defendant disputes this. According to the evidence of the Defendant’s general manager Rajwan Singh, the company has three salespersons. The other members of the sales staff have been with the company for over five years. According to Mr. Singh, the Defendant has never had a salesman who went an entire month without making a sale, other than the Claimant.
There was also a discussion about the possibility that the plaintiff had forwarded emails to his personal account and then deleted them from the company’s mail system, in express violation of the terms of his written employment agreement. While a further arrow in the employer’s quiver, the fact is not the subject of this analysis.
In resolving that the employer did not have just cause to summarily terminate the plaintiff’s employment, Judge K. D. Skilnick held as follows:
 The relationship of employer and employee is a contractual one. At common law, in the absence of a specific provision otherwise, an employer may not dismiss an employee without giving the employee reasonable advance notice of the termination of employment or compensation in lieu of notice. An exception to this general rule is where the dismissal is for just cause.
 Not every shortcoming in the employee’s performance will amount to a fundamental breach of the contract of employment. Minor failings on the part of the employee, gradual deterioration of performance, or even an accumulation of a number of minor failings require the employer to warn the employee and to give the employee a reasonable opportunity to correct those deficiencies before termination of the employment without notice will be justified. The employer must treat the employee fairly and with good faith and must disclose to the employee the errors she or he is making.
 The dishonesty of an employee has sometimes been found to be sufficient grounds for dismissal, provided that the dishonesty is significant and is established on a balance of probabilities…
 In this case, the evidence suggests that the Claimant was not completely forthright on a number of issues. Certainly his resume and his email sending the resume to the Defendant left the impression that the Claimant was not very far removed from the lumber industry. The statement in his letter that he had wound his business down “recently”, the indication in his resume that he was working at his own company in the lumber industry to the “present”, and the absence of any mention of his actual employment as a truck driver, in a nursery and as a security guard support the contention that the Claimant was attempting to convey the false impression to the Defendant that he was working in the lumber industry very recently. These and other discrepancies in the Claimant’s evidence lead me to accept the evidence of Mr. Binning that the Claimant represented to him and that he believed that he was hiring someone with fresh connections to the lumber industry.
 Yet as much as these acts give rise to concerns about the Claimant’s honesty, it is not clear that they are sufficient to warrant the remedy of dismissal. The misrepresentation about the Claimant’s experience in the lumber industry would be more troubling if he had never worked in the industry or if he had not done so for over a quarter of a century. The loss of the email has not been shown to have somehow adversely affected the Defendant’s business. The fact is that the Claimant was not making any sales and it is unlikely that the presence of the email would shed any worse light on that fact. The reasons for the Claimant’s poor performance as a salesman are unclear. It has not been shown that he was not showing up for work, was not trying to make sales or was guilty of some other misconduct. The missing emails may show some other misconduct, but this is speculative…
 While the Claimant’s conduct in this regard does not present him in a favourable light, I am unable to conclude that his dishonesty goes to the core of the employment relationship to a degree that warrants his dismissal for cause. While the facts of this case may be described as “close to the line”, I am not satisfied that they Defendant has shown just cause for dismissal of the Claimant.
In the result, the plaintiff was awarded two months’ pay in lieu of reasonable notice.
I have no doubt that this decision frustrated the defendant employer. The employee had essentially lied about his credentials and then was unable to produce a single cent of value for the employer in his nearly six weeks of employment.
However, the case demonstrates the tension between an employer having a legitimate reason to terminate the employment relationship and an employer having legal just cause to do so.
As Judge Skilnick correctly, in my view, observed, in order for an employer to summarily dismiss an employee without providing the employee with some form of notice or payment in lieu, the employee must be “guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.” (See R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co. (1967), 62 DLR (2d) 342 (ON CA), (reversed on another point (1968), 70 DLR (2d) 693 (SCC)) at p. 348).
So, while it is clear that the employer had every reason to end Mr. Lura’s employment, what the employer did not have was “just cause,” which, again, is a legal construct.
Takeaways for Employees with Labour Pains
It is certainly not the intention of this post to leave readers with the impression that it is okay for one to lie on his or her resume or in a job application; it is not. Rather, the takeaway from this post is that there is a difference between an employer having “just cause” to terminate the employment relationship and an employer having “a reason” to end the employment relationship. As is explained more fully in the post What is Wrongful Dismissal?, while an employer generally does not require “just cause” to end the employment relationship and, in most cases, does not even need a ‘good’ reason to end the employment relationship, unless the employer can demonstrate that it had “just cause,” the dismissed employee will be entitled to notice of dismissal or a payment in lieu thereof, the latter of which more frequently being called “severance.”
If you are a worker in Ontario and have recently been let go from your job, you need to speak with a lawyer before making any final decisions with respect to your case and certainly before you sign any full and final release in favour of your employer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
The takeaway for employers is that, as Judge Skilnick observed, “Not every shortcoming in the employee’s performance will amount to a fundamental breach of the contract of employment.” And, while it is generally an accurate statement of law that an employer does not require just cause to end the employment relationship, simply because the employee is not working out does not necessarily mean that the employer will be within its legal rights to summarily terminate the employment relationship; notice will often be required.
If you are an employer in Ontario and are thinking about ending the working relationship with one of your employees, it will likely pay to speak with an experienced employment lawyer first.The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
To reach the author of this blog, Sean Bawden, email firstname.lastname@example.org or call 613.238.6321 x260.
Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.