Ref­er­ences fraught with risk

Be truth­ful with ter­mi­nated em­ployee

National Post (Latest Edition) - - FP LEGAL POST - Ho ward Le vitt Work­place Law

The English play­wright Os­car Wilde sar­don­ically com­mented, “No good deed goes un­pun­ished.” And this holds for em­ploy­ment ref­er­ences. In two re­cent On­tario cases, em­ploy­ers have been sued for the ref­er­ences they pro­vided for­mer em­ploy­ees. No em­ployer is un­der any le­gal obli­ga­tion to pro­vide a for­mer em­ployee with a ref­er­ence. And no court has the au­thor­ity to or­der one. So pro­vid­ing one is the prod­uct of a con­scious de­ci­sion.

Why would an em­ployer de­cide to pro­vide a ter­mi­nated em­ployee with a ref­er­ence?

Com­pas­sion, for one. The em­ployer may feel badly for the ter­mi­na­tion and wish to as­sist the em­ployee in mov­ing on to their next po­si­tion. An­other rea­son may be more op­por­tunis­tic. If the em­ploy- ee is quickly re- em­ployed, the em­ployer has less ex­po­sure to a po­ten­tial claim for wrong­ful dis­missal.

Some em­ploy­ers bran­dish favourable ref­er­ences as bar­gain­ing chips in ne­go­ti­at­ing smaller sev­er­ance pack­ages.

Two dis­tinc­tions need be made.

There are two types of ref­er­ences: One de­lin­eates the bare de­tails of the for­mer em­ployee’s em­ploy­ment — pe­riod of em­ploy­ment, po­si­tion oc­cu­pied, per­haps salary. The other de­scribes the em­ployee’s strengths and pro­vides pos­i­tive com­men­tary. The is­sue of ref­er­ences only arises in the con­text of em­ploy­ees ter­mi­nated with­out cause. No ref­er­ence should be pro­vided to any for­mer em­ployee ter­mi­nated with cause.

Some­times ref­er­ence check­ers are ac­tu­ally do­ing so at the be­hest of the em­ployee, to build up a case and dis­prove any al­le­ga­tions of cause. Em­ploy­ers should con­sider, when re­ceiv­ing a ref­er­ence call, that they might be be­ing set up. For the same rea­son, tight con­trol should be placed upon who is per­mit­ted to pro­vide ref­er­ences.

It should usu­ally be a des­ig­nated per­son from the HR de­part­ment to pre­vent a sym­pa­thetic but cred­u­lous su­per­vi­sor pro­vid­ing an un­de­served ref­er­ence to as­sist a for­mer subor­di­nate. But even with em­ploy­ees t er­mi­nated with­out cause due to per­for­mance or at­ti­tu­di­nal prob­lems ( not amount­ing to cause), care should be taken. If the ref­er­ence is dam­ag­ing and pre­vents the em­ployee find­ing work, the em­ployer is pro­tected from be­ing suc­cess­fully sued if they hon­estly be­lieved what they were say­ing and were not en­tirely neg­li­gent in what they stated.

But it is not only the for­mer em­ployee who may sue. If what they say is un­truth­ful, the new em­ployer may sue if they suf­fer dam­ages from re­ly­ing upon what they were told. A ref­er­ence that is in­com­plete may also be false if it tells a half truth or leaves out ob­vi­ously rel­e­vant in­for­ma­tion. If the ref­er­ence is know­ingly dis­hon­est there is no de­fence.

What is an em­ployer to do if a ref­er­ence is re­quested by a for­mer em­ployee or prospec­tive em­ployer? If the for­mer em­ployer in­tends to pro­vide one, here are my sug­ges­tions:

Tell the truth. Tell the ter­mi­nated em­ployee in ad­vance what the ref­er­ence let­ter will con­tain. This usu­ally oc­curs when the ter­mi­na­tion pack­age is ne­go­ti­ated. If the em­ployee does not agree with its con­tents, it is best not to pro­vide any ref­er­ence be­yond the bare- bones va­ri­ety;

Po­ten­tially use it as a ne­go­ti­at­ing tool. An em­ployer may be able to ne­go­ti­ate bet­ter terms with the dis­missed em­ployee if an ac­cept­able ref­er­ence let­ter is pro­vided.

This must be ap­proached with cau­tion. Some courts have awarded ad­di­tional wrong­ful dis­missal dam­ages if it is found that an em­ployer with­held a de­served pos­i­tive ref­er­ence;

If an agreed- upon ref­er­ence is pro­vided, it should be in writ­ing and the for­mer em­ployer should en­sure that any oral in­for­ma­tion pro­vided is con­sis­tent;

If there is an oral ref­er­ence sub­se­quently pro­vided by the em­ployer, it should make con­tem­po­ra­ne­ous notes of the con­ver­sa­tion to con­firm what was asked and what was stated to the party seek­ing the ref­er­ence.

Want­ing a pos­i­tive ref­er­ence, what should a dis­missed em­ployee do? I rec­om­mend that the ter­mi­nated em­ployee pre­pare a draft that he or she be­lieves the em­ployer will agree to. Ob­vi­ously list any pos­i­tive char­ac­ter­is­tics and the rea­son for the ter­mi­na­tion if it does not por­tray the em­ployee in a poor light. Ref­er­ences can be a pow­er­ful mo­ti­va­tional tool if your em­ploy­ees know that the qual­ity of their per­for­mance will fol­low them through­out their ca­reer. Howard Le­vitt is se­nior part­ner of Le­vitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight prov­inces. The most re­cent of his six books is War Sto­ries from the Work­place: Columns by Howard Le­vitt. hle­vitt@ levit­tllp. com


If an agreed-upon ref­er­ence is pro­vided, it should be in writ­ing and the for­mer em­ployer should en­sure that any oral in­for­ma­tion pro­vided is con­sis­tent, writes lawyer Howard Le­vitt.

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