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Getting real about references

Employers shouldn’t be afraid of giving bad references if they’re true
Recruitment, employment law
A recent Yukon case highlights the challenges around reference checks. Shutterstock

By Jeffrey R. Smith

Do you like to be blunt and straightforward about difficult subjects, or do you try to sugarcoat things to ease the pain? There are differing opinions on what is the better approach, and it can really depend on what the nature of the subject is. Sometimes one approach is better, and sometimes the other.

Many employers feel it’s easier to adopt the sugarcoating approach when it comes to providing references for former employees, glossing over any difficulties they had with the worker in question. Often, all they will provide is the basic facts — the employer worked there, her position with the company, and the date of termination. This approach often stems from a fear of legal action if what they say to a prospective employer damages the worker’s chances at getting a new job. However, it is rare that an employer is hit with consequences for giving a bad reference — as long as the employer believes it is giving an honest account of its experience with the worker.

Take a recent case involving an Ontario employer that dismissed a worker due to a lack of work, and the owner agreed to the worker’s request to be a reference on the worker’s resumé. A little while later, the worker applied for a job with the Yukon government and an official contacted the owner by telephone and read a list of prepared questions. The prospective employer was satisfied with the worker’s qualifications, so most of the questions had to do with how the worker handled relationships in the workplace.

The owner said the worker had good technical knowledge and skills, but knew the worker had had problems getting along with other employees. He said as much to the interviewer, saying the worker didn’t work well in a team environment and had a chip on his shoulder. He also said they had dismissed the worker because he wasn’t needed anymore and had a performance and attitude problem. When the interviewer asked if the company would rehire the worker, the owner replied “No way.”

The worker wasn’t hired by the Yukon government and when he learned of the bad reference, he sued his former employer for defamation and wrongful dismissal, seeking more than $700,000 in damages.

A court agreed the worker was wrongfully dismissed and awarded four months’ pay in lieu of notice, but denied the defamation claim. There was plenty of evidence from other workers and management that the worker was difficult to work with and had a bad attitude and the owner had every right to say so. There was no malice in the owner’s intent as he was just being honest about what he knew about the worker, said the court. As a result, the defamation claim was dismissed: see Papp v. Stokes, 2017 ONSC 2357 (Ont. S.C.J.).

Statements can be defamatory if they lower a person’s reputation in the eyes of a reasonable person, but if they are true there is no defamation. In the above case, the employer merely relayed the information it had about the employee that reflected the actual circumstances — the fact that it was bad and hurt the worker’s chances at new employment was really the worker’s fault.

Employers shouldn’t be afraid to give bad references if they reflect the truth, as they won’t face sanctions if they’re being completely honest — in fact, if they gloss over negative issues and the prospective employer hires the worker and suffers for it, that could cause problems.

Providing references is probably not the time to adopt the sugarcoating approach. Otherwise, what’s the point?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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