Go ahead, give a bad reference
If it’s not malicious, it’s within your right
My first column for the Post, in 1998, was headlined “If You Can’t Say Something Good, Say Something Bad.” Its subject was employment references. There had never been a Canadian court case on references so my analysis was based on broader principles of libel and negligence law. But now there is.
Adam Papp worked for two- and- a- half years as a staff economist with Stokes Economic Consulting. Stokes had to cut costs and Papp was let go. Papp’s major project was complete and, because he had a master’s degree, his income was higher than that of his peers.
Papp called the owner, Ernest Stokes, asking if he could list him as a reference. Stokes agreed, wrongly assuming that any reference would be limited to Papp’s technical proficiency. Papp then applied for a job with the Yukon Government as a statistician, listing Stokes as a reference. Yukon agreed to hire him “if his references checked out.” Papp t old Stokes that he was likely to be hired and to expect a call.
But the interview er, Amanda Ho, told the court about her conversation with Stokes. Her notes (which she admitted were not verbatim) included an exchange that went somewhat like this:
Q: How would you rate his quality of work? A: We were not that pleased.
Q: Describe whether he gets along in a team setting? A: Not well.
Q: How well does he get along with his co-workers? A: Not greatly. Q: Does he have well- developed, good working relationships? A: I did not see any evidence of it.
Q: What could he improve on? A: See above.
Q: Would you re-hire? A: No way.
Ho informed Papp that Stokes’ reference eliminated him from contention. Papp sued Stokes for defamation.
Stokes testified that, after he agreed to provide the reference, he spoke to other employees and learned of their dissatisfaction with Papp’s behaviour. He disagreed with some of Ho’s recorded answers, but acknowledged stating t hat he was not pleased that Papp could not get along with staff.
Justice Miller of the Ont ario Superior Court of Justice found that Stokes’ comments were inherently defamatory as they would l ower Papp’s reputation. However, Stokes had two complete defences. First, the Court found that what Stokes had said to Ho was “substantially true.”
Of greater interest, the Court held that, even if what Stokes told the Yukon Government had been entirely false and cost Papp the new job, Stokes still could not be successfully sued because reference checks enjoy a “qualified privilege.” That means that, unless they are made maliciously ( i . e. if Stokes knew that what he said was false or was reckless or indifferent to its truth or falsity), he could not successfully be sued for slander. In this case, Stokes had a reasonable basis for his opinion and, before giving his reference, he had verified its accuracy by eliciting other opinions.
Papp also sued for wrongful dismissal. Given his twoand- a- half years of service, $ 70,000 salary and the fact that he was in his early 30s, t he Court awarded f our months’ pay. After his original severance, that award amounted to only $ 17,193, below t he Small Claims Court’s $ 25,000 limit. Generally, if an employee sues in the Superior Court and recovers under the limit, he would have to pay costs. One can assume that with the cost of all the preliminary steps of pleadings, discovery, etc., through to a three- day trial, even after recovering this award, Papp would be considerably out of pocket.
The broader message flowing from this case is that Canadian employers’ customary approach of providing references confirming only position and length of service is wrong- headed. Employers can provide a particularly harsh reference if they honestly believe it to be true and are not careless in providing it. This is the case even when that reference directly costs the employee a job.
References are one of employers’ few motivational tools. If an employee knows that either great or desultory performance will be rewarded with the same reference, and that if they’ve done a poor job no future employer will ever know, the results are obvious. Also, employers need to receive honest references to make their hiring decisions. They are more likely to receive them from other employers if they provide them themselves.
So, provide full references. Doing otherwise isn’t fair to either your employees or your own company.