Damaging reference survives Alberta privacy challenge

Disclosure of job performance information found reasonable

An Alberta woman’s complaint that her former employer disclosed unnecessary personal information to her prospective employer in a reference check has been rejected by Alberta Information and Privacy Commissioner Frank Work.

The woman, who wasn’t named in the decision, was working as a temp for Burnswest, a Calgary-based land development and property management company, in 2005. She applied for a full-time position so Burnswest contacted her former employer, George Byma Real Estate, for a reference.

Byma told Burnswest its former employee had done a good job for a while but things deteriorated towards the end of her employment. It reported she made mistakes and had wasted or “stolen” company time. Burnswest asked about the employee’s skill levels, quality of work, punctuality, position with Byma and how she got along with co-workers. When Burnswest asked if Byma would hire her again, her former employer responded that it definitely would not.

A few days later, the woman called the Byma employee who had given the reference and asked why he had undermined her opportunity to work full time for Burnswest. An argument ensued and she made a comment about the employee’s wife leaving him. The employee responded by referring to her being married “two or three times” and having “bounced around on several different jobs the past few years.”

On Aug. 5, 2005, the woman filed a complaint with the privacy and information commissioner, claiming Byma had told her prospective employer she was a liar and a thief, she undermined the company’s success, she had been married three times and she had worked at several jobs since living in Calgary. She said this was personal information, some of which wasn’t true, and Byma’s disclosure of it and Burnswest’s collection of it violated Alberta’s Personal Information Protection Act (PIPA).

Commissioner Work found both Byma’s and Burnswest’s records were consistent in that they discussed the woman’s work history, habits and skills but not her personal life. Byma conceded her personal life came up in the ensuing conversation with her when she phoned the Byma employee, but not with Burnswest.

The commissioner found the information discussed between the two companies qualified as personal employee information that was reasonably required by Burnswest to establish an employment relationship. Therefore, Byma was allowed to disclose it and Burnswest was allowed to collect it under PIPA. He found that no other personal information was exchanged between the two employers.

“The disclosure of information about job skills and performance is reasonable for the purpose for which it was being disclosed and relates to the employment of the individual,” Commissioner Work said. “There is nothing in the evidence to suggest that Byma disclosed an assessment of (its former employee’s) job skills and performance that was not an accurate reflection of the organization’s assessment of her performance.”

For more information see:

Office of the Information and Privacy Commissioner Orders P2006-006 and P2006-007 (Jan. 2, 2008), Frank Work, commissioner.

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. For more information visit www.employmentlawtoday.com.

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