Falsifying Employment Record Is an Offence
By the time he was 73, Wesley had worked for a truck dealership for almost 20 years. His job was performing predelivery inspections of transport trucks before they were delivered to customers to make sure everything was in order.
One day Wesley told his boss he would like to retire but he didn’t want to just quit. He wanted to get an employment record that said he was laid off so he could collect unemployment insurance.
Many people use the term “laid off” to mean a termination of the employment relationship that is not for just cause. At law, it means something quite different. A layoff is a situation in which an employer sends the employee home without work in the hope of recalling them when business picks up. A termination is the end of the relationship. In either case, one would be eligible for employment insurance unless the employee was guilty of wilful misconduct.
The boss talked to HR and it was decided that they would give Wesley a letter of retirement with four months working notice. A voluntary retirement will not get you employment insurance. Wesley was upset and indicated that he wanted to be laid off, not retired. The employer indicated that they could not lay him off because there was enough work for him to do.
Wesley stayed for the working notice period and actually put his tools up for sale.
Some weeks after he finished working, he had a lawyer send a letter indicating that he had been terminated/wrongfully dismissed and wanted 21 months’ pay in lieu of notice.
The employer then did a very smart thing and sent Wesley an offer for him to come back to work with the same pay and the same hours. Everyone was happy to have Wesley back and he had not been replaced. Wesley did not accept the offer and the matter went to trial. Wesley lost.
The judge found that the only reason any cessation of Wesley’s employment took place was because he had asked to retire.
During those months where he was still working out his notice period, he did not object to the fact that his employment was coming to an end.
Wesley failed to mitigate his damages by refusing the employer’s offer of re-employment. If you are terminated by an employer and want to sue them for lack of pay in lieu of notice, you have to show that you made reasonable efforts to look for new employment. If you are offered reasonable alternative employment and turn it down, your damages stop, whether that offer is from a new employer or your old employer.
On many occasions, I have had employers call me asking if they can issue an employment record indicating that an employee was laid off or terminated even though it was the employee’s idea.
Usually the employee promises never to bring a claim for any kind of termination pay, they just want to collect employment insurance and can’t do that if they just quit. The employment record, however, is a statutory declaration. You can actually be prosecuted if you sign it and it is not truthful. While I have never heard of that actually happening, it is a legal possibility.
That, however, is not the biggest risk. Sometimes I am consulted by employers who didn’t give me a chance to tell them not to do it. They laid off or terminated an employee who had asked for it because they like the employee and wanted them to get employment insurance. Then a letter arrives from an employment lawyer claiming that since the employment record is a statutory declaration, it is clear that their client was let go and that pay in lieu of notice is owing. Suddenly, the employer is in an uncomfortable situation. In order to defend the claim they have to tell a judge they lied on the employment record and committed an offence. I have never seen it get that far, but a falsified employment record will give the employee the leverage to get some money out of the employer just to get a settlement and put it to bed.
This article was originally published by The Hamilton Spectator.
