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What’s in a Good Employee Reference?

By April 24, 2017August 17th, 2020Employment Law

A dentist asked us whether they have to give a good/bad/any reference for an employee who no longer works for them.  They were concerned, because it is a relatively small industry, that anything less positive they said about the employee would come back to hurt them.

Our response? Just tell the truth.

This simple and effective position was recently confirmed in a case in an Ontario Court.

In the case of Papp v. Stokes Economic Consulting Inc, 2017 ONSC 2357, a young economist sued his former employer for wrongful dismissal, defamation and damages after it fired him (without cause) and gave a less-than-glowing job reference.

Upon termination, the employer agreed to give the employee a reference to a prospective employer and confirm his technical capabilities. Fortunately, the employee found a government and made it through the recruitment process – up to the reference check (which is usually the last if not the penultimate step before an offer). After some back and forth emailing, the reference was given.

The new employer asked the old employer the following questions, and they received the following answers (based on the new employer’s notes):

Q:  In what capacity did Adam work for you? For how long?
A: Economic modelling for a couple of years. Let go because he was not needed anymore and a performance and attitude issue.

Q: How would you rate his quality of work?
A: We were not that pleased.

Q: Describe how he gets along in a team setting?
A: Not well.  He has a chip.

Q: How well does he get along with his co-workers?
A: Not greatly

Q: And his supervisor?
A: At one time [he] supervised. [That was the] one time we got along.

Q: Is he able to develop good working relationships?
A: Did not see any evidence of it.

Q: What are his strengths?
A: OK in computing.

Q: What could he improve on?
A: See above

Q: Would you rehire?
A: No way

This was certainly not a glowing reference.  However, it was truthful. The employee did not get the job, and so the employee sued for about $800,000.

The Judge listened to the employee and employer, including the person who gave the reference, as well as the employee’s former co-workers.  The Employer argued that the job reference, while not overly positive, was the truth and not defamation. The Judge agreed and found that an employer can give its honestly held opinion in a reference check, as long as that opinion is not being given maliciously or recklessly. For that reason, the Judge threw out the entire defamation lawsuit and damages related to the defamation.

Lessons for Dentists

As it has been said in a few books and movies, “the truth shall set you free.” And in this case, it certainly did.  The Employer agreed to give a reference for its recently fired employee, but did the employee expect the employer to lie? Since this plaintiff litigated this matter all the way to the end of a trial, his name – and bad reference –  will forever be google-able and part of the common law for the rest of time.  Sounds like a good example of the Streisand Effect.

Employers have a duty of good faith to all of their employees, but they don’t have to bend the truth.  So, if you agree to give a reference for any employee, be honest (and take notes just in case).

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.