Like I said before, just tell the truth!
Canada’s Supreme Court recently agreed with lower courts in saying negative job references aren’t defamation if they are honest and made without malice.
Briefly, the Law of Defamation
If a former employee wants to sue for defamation, they need to prove that the employer made the comments to someone other than the employee, and those comments probably (and objectively) lowered the employee’s reputation. But, there are some valid legal defences to defamation: (1) the comments were substantially grounded in truth, and (2) the job reference was honest and not motivated by malice, or not made carelessly.
Ms. Kana (the Employee) sued Mr. Riggin (her former Manager) for statements he made during a reference check and apparently caused a prospective employer to rescind its offer of employment.
The Employee had worked for the for 5 years and her superiors held high opinions of her job performance; but they were apparently unaware of her Manager’s concerns with her performance.
After being laid off from her job, the Employee applied for a new job and received a conditional offer of employment, subject to a reference check. The new employer phoned the old employer and the Employee received a positive reference. They then passed the new employer to the Manager who had further experience with the Employee.
After speaking to the Manager, the new employer told me Employee she had failed to meet the conditions of employment because of the negative reference from her Manager.
The plaintiff sued for defamation based on the written notes from the new employer’s phone calls. The allegedly defamatory statements were that
- there was considerable conflict between the Employee, her supervisor and other employees;
- The Employee did not take direction well,
- The Employee was narrowly-focused,
- The Employee handled stress poorly, and
- The Manager would not re-hire her.
The Manager stated, under oath, that he made some of those statements and qualified other statements.
The Ontario Superior Court agreed that the comments were, in fact, defamatory, but then moved on to consider whether they were subject to “qualified privilege”. The Court stated there are strong policy reasons to protect both current and former employers from liability when giving employment references, and that the employment references are standard examples of “qualified privilege.”
Then, the Employee tried to argue that the statements made by the Manager were motivated by malice, citing three workplace incidents where she apparently embarrassed the Manager. The Court didn’t buy her arguments.
The Employee was quite determined: she appealed her loss from the Superior Court to the Court of Appeal, and appealed that loss to the Supreme Court of Canada where she also lost. The Employee was forced to pay her former manager over $25,000 in legal fees for all of her losses.
Sounds to me like all the Courts in Canada agree that a true employee reference (with no evidence of malice) is not defamation.
Lessons for Employers
As I mentioned above, an honest reference will not attract defamation damages in Canada. Dentists and employers alike can take some comfort when they get a call for a reference, or are writing reference letters about employees leaving their employ. Disclosing honestly held views about current or former employees to other prospective employers is protected speech in Canada (so long as the comments are honestly held and not motivated by malice).
Still, there are some things to keep in mind:
- Make sure that any potentially negative statements about an employee are made in a polite and professional manner
- Document important meetings with employees, or have a witness with you during tougher meetings (like performance reviews and terminations)
- Give honest performance reviews
Give us a call or email if you have questions about employment references (giving them or receiving them!)
As a post script: You may be wondering, “Do I have to give an employment reference for a former employee?” There is no legal obligation that forces Ontario employers to give references, but occasionally I see references in lawsuits to employers not giving reference letters to employees. My opinion is, it is usually advisable to give at least a short reference letter and make yourself available for a phone call if required.