Falsifying Record of Employment Illegal
A senior family law lawyer from Ottawa whom we will call Ben, hired a junior lawyer to assist him with his law practice. She was fresh out of law school and they had, for a long time, an excellent relationship.
Two years after she started, Ben terminated the junior. When he filled out her record of employment under “Reason for Dismissal” he entered the letter “A”. If you look on the back of the employment record, it tells you that A means shortage of work.
Employment records are statutory declarations. Intentionally falsifying employment records is an offence. Just over the place for the employer’s signature on the record of employment are these words: “I am aware that it is an offence to make false entries and hereby certify that all statements on this form are true.”
Shortly after the dismissal, Ben sought to help his junior find new work. He spoke to a family law lawyer at another firm and told her that he did not have enough work to keep both himself and his junior fully occupied.
After two years of loyal service, the junior wanted some pay in lieu of notice to tide her over while she looked for new work but it was not forthcoming. She sued for wrongful dismissal. In the statement of defence the lawyer did not deny that he had dismissed the junior but suddenly, it had nothing to do with a shortage of work. Now he claimed that the junior was terminated for just cause because her performance was so bad. If there is just cause for a termination, pay in lieu of notice is not required.
One can only pause to wonder how that family law lawyer from the other firm felt when she heard that Ben thought his junior was a bad lawyer. After all, he had called her trying to get the junior a new job and told her that it was only because of a shortage of work that he had to let the junior go.
At the trial of this wrongful dismissal action, Ben changed his story again. Although there was nothing about it in his statement of defence, he decided that he had not terminated the junior after all, she had quit. Now the defense was that she resigned and even if he fired her, which he claims he did not, she was such a bad lawyer he would not have owed her pay in lieu of notice even if he had.
The trial went on for some time because the junior now had to call other colleagues from Ottawa and former clients to testify as to her competence as a lawyer to rebut the allegation that her performance was wanting.
While Ben was not quite foolish enough to represent himself, as the judge wrote, during the trial he “would become agitated to the point where his physical and verbal reactions (both positive and negative) to the evidence or legal argument disrupted the court despite my cautions…it seemed at the time that the defendant believed the entire proceeding to somehow be an affront to his dignity and beneath his self-described stature.”
Suffice to say, Ben lost utterly. He not only had to pay the junior two months lost wages and her legal costs. He gets to spend the rest of his legal career with this decision online for any lawyer to see. In it the judge wrote these words of Ben: “There was really no part of the oral evidence by the defendant that had the ring of truth. I concluded that the oath meant very little…”
The judge refrained from awarding bad faith damages as a result of Ben’s treatment of the junior during and after the termination. Ben was lucky I was not the judge.
This is the second time in the last year that I have written an article about a bizarre employment law case involving a lawyer. Hold the lawyer jokes please. Reality is actually funnier.
As published in the Hamilton Spectator, August 16, 2008