Be warned, job seekers: There is such a thing as a bad reference
Think carefully before you decide on a reference. Lawyers say your former boss has a right to a brutally honest review.
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It sucks, but it happens to most of us sometime in our working lives: a layoff.
But the world doesn’t end. You’ll find another job. And at least you can be reasonably confident your former employer will give you a nice reference — they won’t say anything nasty, for fear of being sued.
But that isn’t always true, as one Ontario man found out the hard way. His former boss gave him a reference that would haunt any job hunter’s nightmares, but it was allowed to stand. And what happened in his case could have implications for everyone’s job.
Adam Papp was laid off from his position as an economist at a Milton, Ont. consulting company in 2011. Some time later, he was the leading candidate for a job with the Yukon government. The recruiter called up his old employer and asked for an honest reference.
Papp’s former boss said he “had a chip on his shoulder” and acted like a “snob” around the office. Needless to say, he didn’t get the job.
Papp sued his former company for $500,000 in damages for defamation, as well as $65,000 for wrongful dismissal, $200,000 in punitive damages and $30,000 for infliction of mental suffering.
This spring, an Ontario Superior Court judge ordered the company to pay Papp $17,000 for wrongful dismissal, because of insufficient notice. But the rest of his complaints were not accepted, because the company successfully argued it had two valid defences against defamation: justification (that the statements were true) and qualified privilege (that the former boss had a duty to share the information, and the potential new boss had a legitimate need for it).
Papp’s wretched reference was a big departure from the common corporate practice that Ottawa employment lawyer Paul Willets calls “the tombstone letter”: name, dates of service and perhaps a brief description of job duties, but nothing else.
The case won’t “open the floodgates” and result in a deluge of badmouthing bosses, Willets said, but “it’s a useful confirmation that (qualified privilege) is going to apply in the context of a reference check.”
“Based on this case,” he continued, “an employer certainly could provide a negative reference letter as long as it’s honest, it’s something they can support and they’re not doing it in a malicious fashion.”
You can absolutely still sue your ex-boss for giving you a defamatory reference. And the law says it’s on them to defend it, Willets explained.
But Willets warned job seekers to think carefully from now on before they decide on their references. He suggested employers consider putting a single staff member in charge of references to help keep the process neutral.
Labour lawyer Arthur Zeilikman explained that although this decision is only binding in Ontario, judges around the country will be able to use it as a persuasive “reference point.”
He had simple advice for the people picking up the phone when they’re called for a reference: “Speak the truth and be careful.”
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