Is A Bad Employment Reference Defamation?
One of the worries of both former employer and former employee is what kind of reference is associated with the employment. The employee does not want his or her reputation to be tarnished, while the employer does not want to be sued for defamation if s/he says something negative about the employee. Can a bad reference be defamation?
The answer, like so many legal answers, is "it depends". An employer will not be liable for defamation if a reference is truthful and free from malice. A recent Ontario Superior Court decision, Papp v Stokes, illustrates:
The employee was hired as an economist and worked for the company for almost three years before he was dismissed due to a shortage of work. At the time of the dismissal, he asked the President if he could use him as a job reference.
The employee applied for another position with another company. After the initial screening, a written test and telephone interview he was rated in first position as a potential hire. The new company then called the President. The notes of that conversation reflect the following responses:
1. In what capacity did Adam work for you? For how long?
Economic modeling for a couple of years. Let go because he was not needed anymore and a performace and attitdue[SIC] issue.
2. How would you rate his quality of work
We were not that pleased.
3. Describe how he gets along in a team setting?
Not well. He has a chip.
4. How well does he get along with his co-workers?
Not greatly.
a. And his supervisor?
At one time supervised. One time we got along.
5. Is he able to develop good working relationships?
Did not see any eveidence[SIC] of it.
6. What are his strengths?
Ok in computing
7. What could he improve on?
See above
8. Would you re-hire?
No way
The employee was de-certified and did not receive the position.
The employee sued claiming that the reference was defamatory. The judge found that the statements in question were, on their face, defamatory in that they would lower the plaintiff's reputation in the eyes of a reasonable person, that the words referred to the plaintiff and that the words were communicated to another person. However, job references enjoy a qualified privilege in that they are subject to two defences. First, if the words are substantially true they are justified. Second, if the words are stated without malice they are justified.
In the case, the employer believed the words were true. This belief was based on the employee's file and on feedback provided by supervisors. The employee had been considered someone who was technically okay but who had difficulty getting along with others.
With respect to the issue of whether the words were motivated by malice, the court will look at the words used including whether the words were violent, outrageous and disproportionate to the facts. Again, on these particular facts the words could not be said to show malice.
The Lesson: A bad reference could be defamatory but only if it is not true and it is motivated by malice.
The Lesson for Employees: Ask your referees what they plan to say about you and whether they will be providing suitable information. If they cannot or will not give reference you hope for, find an alternate referee.
The Lesson for Employers: Advise any former or current employees about what you will and will not say about them in a reference. Additionally, keep accurate records to ensure that what you say is truthful and based on the employee's employment record. In this way, you have the defence of truth should allegations of defamation ever arise.
Papp v Stokes et al, 2017 ONSC 2357 (ON SC) https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2357/2017onsc2357.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
http://adrianlawoffice.wix.com/mysite
If you are an individual looking for assistance with a legal problem, contact Adrian Law for professional and cost-effective advice. adrianlawoffice@gmail.com
The author encourages you to share this article on social media.
Follow me on Twitter @gwendolynadrian