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Suing because of a bad reference letter, probably not a good idea

My mother’s oft-repeated admonition that if I had nothing good to say to say nothing at all was advice not consistently followed by her.

Then again, she also used to tell me to “Do as I say, not as I do.”

I wonder what she would have made of Howard’s lawsuit?

Howard worked as a financial analyst for a consulting company for just under three years when he was let go as a result of a “shortage of work”. He emailed the owner asking him if he would be a reference and showing him a list of work he would be reporting as having done for the company. The owner’s response was, “That is okay.” This very limited communication is where Howard made his mistake, but we will get back to that.
A few months later Howard successfully wrote a test and completed a phone interview for a job in the Yukon.

They told him he was top of the list but his references still had to be checked out.

The person doing the reference check had a hard time getting in touch with Howard’s old boss and asked him if he would like to provide an alternate reference. Howard made his second mistake and said, “No, keep trying.”
When the reference checker did get a hold of the old boss she asked a series of pre-determined questions that elicited the information that Howard was let go for not only a shortage of work but attitude issues. In a team setting he had a chip on his shoulders. He did not get along well with co-workers and had not developed good working relationships. Finally, when the old boss was asked if he would ever consider re-hiring Howard, the answer was, “No way.”

Needless to say, Howard did not get the job and the prospective employer told him why. He sued the old company for the pay in lieu of notice he thought he should have received. He also sued for defamation as a result of the reference.

When someone gives a reference for a former employee, it is covered by the law of qualified privilege. That means that to win in a defamation suit Howard had to prove not only that the employer’s statements were untrue but that they were maliciously made, being reckless as to their truth or not even believing them to be true.

At the trial of this action several of Howard’s old colleagues were paraded through the courtroom who gave evidence that he talked down to them, sometimes ridiculed them, and other times tried to get them to do his work.

The judge found that the boss’s comments in the reference letter had been substantially correct and even if they had not been, he honestly believed them to be true.

Howard succeeded in getting an award for four months’ pay in lieu of notice but failed in his defamation action.
The important lesson in Howard’s case is not so much the result, that was predictable. Never provide the name and phone number of anyone to use as a job reference unless you have completely satisfied yourself they will say positive things in a phone conversation for which they will usually never be held accountable.
Howard should have asked in his email, “Do you feel comfortable providing me with a positive reference if contacted by a prospective employer? If you do not feel completely comfortable saying yes I will appreciate your honesty and look for other reference sources.” That email would have made it clear to the old boss that he wasn’t looking for just a tombstone reference confirming his employment and responsibilities. Howard would have made it easy for the boss to say no and he would likely have got the job.

Howard’s second mistake was not suspecting, when the old boss seemed to be avoiding the reference checker’s calls, that there was discomfort there and that he should have provided an alternate reference.
There is no law saying that anyone has to provide a reference and suing an employer or former colleagues for a bad reference is almost always a waste of time.  Don’t assume without asking that everyone else thinks you are as wonderful as you do. Think twice about who you use as a reference.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com