What can employers do to prevent negative employment references from turning into defamation actions?
A fear of defamation actions has prompted many employers to shy away from providing references for former employees or if they do provide a reference, it is limited to a “confirmation of employment” letter. Unfortunately, this means that prospective employers don’t get the information they need, which can hamper both employers and employees in their searches.
These fears are often unfounded. In two recent Ontario Superior Court cases, Papp v Stokes Economic Consulting Inc., and Kanak v Riggin, it was held that both the defences of justification (truth) and qualified privilege can protect employers from liability for giving negative references.
What is a defamatory statement?
Defamatory statements are published statements about an individual that damages their good name by lowering their reputation in the eyes of a reasonable person. The requirement that the statement must be “published” means the statement must be communicated to at least one other person. The communication does not have to cause actual harm, it merely must be capable of calling into question the person’s good name or reputation.
To determine that defamation occurred, the courts will examine the statement, the context in which it was made, the audience and the surrounding circumstances. As such, it is possible for a negative employment reference to amount to a defamatory statement.
Defences for defamation
Defences for defamation includes justification (truth) and qualified privilege.
In the case of justification, an employer must prove that the defamatory statements or their meaning are true. The employer must also prove that the assertions conveyed by the words (not simply the words themselves) are true.
In the case of qualified privilege, an employer can avoid liability because of the circumstances in which the comments were made, so long as they acted honestly, in good faith and without malice.
Papp v Stokes Economic Consulting Inc.
The plaintiff, Adam Papp (“Papp”), lost out on obtaining a position with a prospective employer because of a negative reference he received from his former employer, Ernest Stokes (“Stokes”). Stokes told the prospective employer that Papp was let go because “he was not needed anymore and had a performance and attitude issue”. He also said there was “no way” he would rehire Papp, because he was “okay in computing”, had a “chip on his shoulder” and did not work well with others.
As a result, Papp sued his former employer for defamation and all related losses.
In this case, both justification and qualified privilege were successfully used as a defence. Although the court agreed that Stokes’ comments were defamatory, the court found that Stokes’ negative remarks about Papp were “substantially true”.
The court also found that an employment reference check is a situation protected by qualified privilege, and that even if the reference had been false, Stokes had not acted with any malice, as he honestly believed his reference to be true. Further, Stokes had not been irresponsible as he had verified the negative remarks before uttering them.
As a result, the defamation claim was dismissed.
Kanak v Riggin
The plaintiff, Tracey Kanak (“Kanak”) sued her former manager, Darryl Riggin (“Riggin”), for defamation arising from comments he made to a prospective employer during a reference check.
Riggin’s reference stated that he liked Kanak and contained both positive and negative comments about her performance. Riggin stated that Kanak did not take directions or handle stress well, and that she was not an effective collaborator. Despite this, Riggin stated that he would consider hiring her, but in an independent capacity outside of the workplace.
As a result, Kanak’s job offer was rescinded and she sued Riggin for defamation.
In this case, qualified privilege was successfully argued. The court was satisfied that although the comments were defamatory on their face, they were not actionable on the basis of qualified privilege. The court held that:
The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.”
The defamation claim was dismissed.
When giving a reference that is negative or has negative connotations, an employer should ensure that the former employee’s file is reviewed and all negative comments are verified before providing the reference to a potential employer or other third party.
When communicating the employment reference, the employer’s representative should speak as truthfully as possible and without malice. Employers should also ensure that the person providing the reference does so honestly and objectively.
By Anique Dublin, Law Clerk and Stuart Rudner