In its decision of Papp v. Stokes, the Ontario Superior Court of Justice has provided a valuable lesson to both employers and employees in what can be shared when a potential employer contacts a former employer to conduct a reference check.
Terminated Without Cause
The Employee worked as an economist with the Employer, who owned an economic forecasting company for just over two-and-a-half years prior to his termination in December 2013.
The Employer told the Employee that he had been terminated because business had slowed down and there was not enough work to justify keeping him on staff. The Employee was paid for four weeks of work in lieu of notice upon his termination, and the Employer agreed to provide him with a positive reference.
It not until after the Employee left, that the Employer realized the Employee had a poor reputation amongst the rest of the staff. The members of the staff had noted the Employee did not get along well with others, had insulted his colleagues’ intelligence by calling them “stupid”, and had a poor work ethic. These assessments were confirmed by several former colleagues.
About four months after he had been terminated, the Employee emailed the Employer and said that a representative from the Yukon Government would be getting in touch to seek a reference statement for a position he had applied for.
A Reference Check is Requested
A representative from the Yukon Government called the Employer and asked him a number of questions about the Employee. Her notes on the conversation read as follows:
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?
4.1 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?
8. Would you re-hire?
Following this conversation, the representative from the Yukon Government informed the Employee he was no longer being considered for the position. The Employee then brought a claim against the Employer for wrongful dismissal ($65,000); defamation ($500,000); punitive, exemplary and aggravated damages ($200,000); and damages for intentional infliction of mental suffering ($30,000).
Assessing a Claim of Defamation
In assessing the claim of defamation, the Court applied the law as laid out by the Supreme Court of Canada in Grant v. Torstar Corp.
In order to succeed in a defamation action, a plaintiff must demonstrate:
(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) that the words in fact referred to the plaintiff; and
(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
If the Plaintiff proves these elements, the onus then shifts to the defendant to advance a defence in order to escape liability. There are generally only two defences. The first is that the statement was substantially true (justification); and the second is that the statement was made in a protected context (privilege).
The Court found the answers provided by the Employer were defamatory. However, the Court then went on to find the Employer’s comments had been substantially true. The Court also found the statements had been made in a protected context – in this case a reference discussion. The Court ruled in favour of the Employer for the claim of defamation.
While some employers prefer to simply confirm someone has worked for them, there are some considerations to keep in mind if they do decide to speak to a former employee’s character. Employers should ensure they have objective evidence to show anything they say is true, and that they are not acting in bad faith, or with malice. That said, there is no onus for an employer to provide a positive statement of reference.
Employees should strongly consider whether they want to ask a former employer to act as a reference, especially if they think unfavorable opinions or facts may be shared. If an employee isn’t sure whether a positive reference can be given, it may make more sense to request a letter outlining their employment instead.
Contact the offices of Peter McSherry if you feel you have been wrongfully dismissed or otherwise treated unfairly in the workplace. We are available online or by phone at 519-821-5465