Author: Marie-Pier Côté
In a very interesting and unanimous decision[1], the Québec Court of Appeal has recently ruled that an employee faced with unfounded allegations of embezzlement does not have to disclose such accusations to a potential employer during the recruitment process.
The employee (“Respondent”) was a senior executive of a pharmaceutical company when an anonymous e-mail was sent to his employer accusing him of a number of wrongdoings such as embezzlement.
During the investigation process, Respondent was approached by a head hunter and met with representatives of a potential employer, Transforce, which was then looking to fill a senior executive position. The investigation undertaken by Respondent’s ex-employer concluded that absolutely no wrongdoing was perpetrated. Simultaneously, Respondent accepted the job offered by Transforce. However, shortly after, Transforce also received an anonymous e-mail containing the same allegations of wrongdoing. Although the head hunter contacted the former employer who confirmed that there had been no wrongdoing, Transforce nonetheless decided to summarily dismiss Respondent for an alleged lack of transparency during the recruitment process and in view of Respondent’s senior executive position. In short, Transforce’s position was that Respondent should have acted with the outmost transparency and divulged the allegations brought against him and that his senior position called for the highest degree of integrity.
The Québec Court of Appeal confirmed the Superior Court’s decision, refused to void Respondent’s employment contract and confirmed that he was dismissed without cause. Concerning a candidate’s obligation to disclose unfounded allegations during a recruitment process, the Appeal Court stated:
“[41] …The Charter of Rights and Freedoms and the Civil Code of Québec guarantee the right to every individual to his integrity, dignity, honor and reputation. A candidate for a position can not be required to disclose a circulating slanderous commentary about him as it would be to force him to renounce to his fundamental rights in self-inflicting what the law prohibits others from doing. In addition, requiring a candidate who is the subject of false and slanderous allegations to disclose that he was the object of such allegations or that an investigation has been conducted on such allegations would open wide the door to schemers, deranged and other undesirables whose only ambition is to harm, destroy or ruin the career of others, or even prevent, for some odd reason, the accession of a person to a job he could legitimately covet.”
[1] Transforce inc. c. Baillargeon, 2012 QCCA 1495 (CanLII)
