HARD LABOUR – BY JASON WARD AND WARDS LAWYERSPC
REFERENCES BY FORMER EMPLOYERS – THEY CAN BE HONEST:
Employers may be wary of giving references for current or former employees, particularly if they were dismissed by the employer. There is no legal obligation for an employer to give an employment reference, unless there is an agreement to do so.
However, there are cases in Ontario whereby disgruntled, former employees have sued former employers for defamation, alleging the employers’ negative reference was defamatory and caused, or contributed to, their inability to secure alternative employer.
However, it is now clear that employers’ references, even if negative, are protected from liability for defamation, provided they are made “without malice”. This applies to both current and former employees.
As a result, employers can now feel more assured if, in the circumstances, a less-than-positive reference is given. Many employers desire to be honest, but have been nervous about informing a potentially successor employer about a candidate’s character, work performance, lack of motivation or other sub-standard characteristics.
In defamation law, the truth shall set you free – this has always been the law in Ontario. Now, in addition to the truth defence, employer references are protected by the defence of “qualified privilege”, provided the employer does not act maliciously, but rather honestly, even if the reference may not be proved as the truth.
Generally, malice need not be proven directly, but can be inferred based on the specific words of the referee employer. It may also be established by evidence about the employer’s alternative, or even ulterior, motivation, if any. In addition, comments that are made without care or proper regard to their truth may also disqualify the “qualified privileged” defence.
So, while employers need to be smart and cautious, they can express honestly-held opinions about an employee and be protected by law, conditional on not acting maliciously.
To be vigilant against the risk of claims of malice when employment references are given, a few tips to employers:
- make your comments in a professional, respectful manner;
- use balanced, moderate language and tone;
- attempt to justify any negative comments by reference to a document, or based on the referee’s first-hand experience with the employee;
- take a balanced approach – mention any positive aspects of the employee, too, if possible;
- take notes after the exercise to record, as precisely as possible, what specifically was communicated to the potential employer; and
- be mindful of any contextual issues or historical circumstances regarding the employee that could potentially be construed to suggest that the referee employer, or another person associated with the referee employer, may be motivated by revenge, a desire to punish the employer or otherwise act in a manner intended to cause harm to the employee.
Given this new development, employers should feel more comfortable with offering employment references, rather than avoiding them simply to avoid potential liability. If everyone did that, it may entirely make unavailable an important, useful part of the hiring and recruitment process, which serves no one’s interests.
Kanak v. Riggin, 2017 ONSC 2837 (CanLII), 2018 ONCA 345 (CanLII) and Tracey Kanack v. Darryl Riggin, 2019 CanLII 1628 (SCC) (leave to appeal denied).
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Date of Blog: February 26, 2019
Thank you for reading this - Jason Ward of WARDS LAWYERSPC.
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This WARDS LAWYERSPC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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