Mar. 17, 2018 "How reference letters can come back to bite employer": Today I found this article by Howard Levitt in the Edmonton Journal. It overlaps between references and law:
The English playwright Oscar Wilde sardonically commented, “No good deed goes unpunished.”
And this holds for employment references. In two recent Ontario cases, employers have been sued for the references they provided former employees.
No employer is under any legal obligation to provide a former employee with a reference. And no court has the authority to order one. So providing one is the product of a conscious decision.
Why would an employer decide to provide a terminated employee with a reference?
Compassion, for one. The employer may feel badly for the termination and wish to assist the employee in moving on to their next position.
Another reason may be more opportunistic. If the employee is quickly reemployed, the employer has less exposure to a potential claim for wrongful dismissal.
Some employers brandish favourable references as bargaining chips in negotiating smaller severance packages.
Two distinctions need be made.
There are two types of references: One delineates the bare details of the former employee’s employment, i.e. period of employment, position occupied, perhaps salary. The other describes the employee’s strengths and provides positive commentary.
The issue of references only arises in the context of employees terminated without cause. No reference should be provided to any former employee terminated with cause.
Sometimes reference checkers are actually doing so at the behest of the employee, to build up a case and disprove any allegations of cause. Employers should consider, when receiving a reference call, that they might be being set up.
For the same reason, tight control should be placed upon who is permitted to provide references. It should usually be a designated person from the HR department to prevent a sympathetic but credulous supervisor providing an undeserved reference to assist a former subordinate.
For the same reason, tight control should be placed upon who is permitted to provide references. It should usually be a designated person from the HR department to prevent a sympathetic but credulous supervisor providing an undeserved reference to assist a former subordinate.
But even with employees terminated without cause due to performance or attitudinal problems (not amounting to cause), care should be taken.
If the reference is damaging and prevents the employee finding work, the employer is protected from being successfully sued if they honestly believed what they were saying and were not entirely negligent in what they stated.
But it is not only the former employee who may sue. If what they say is untruthful, the new employer may sue if they suffer damages from relying upon what they were told. A reference that is incomplete may also be false if it tells a half truth or leaves out obviously relevant information. If the reference is knowingly dishonest there is no defence.
What is an employer to do if a reference is requested by a former employee or prospective employer? If the former employer intends to provide one, here are my suggestions:
— Tell the truth. Tell the terminated employee in advance what the reference letter will contain. This usually occurs when the termination package is negotiated. If the employee does not agree with its contents, it is best not to provide any reference beyond the bare-bones variety.
— Potentially use it as a negotiating tool. An employer may be able to negotiate better terms with the dismissed employee if an acceptable reference letter is provided. This must be approached with caution. Some courts have awarded additional wrongful dismissal damages if it is found that an employer withheld a deserved positive reference.
— If an agreed-upon reference is provided, it should be in writing and the former employer should ensure that any oral information provided is consistent.
— If there is an oral reference subsequently provided by the employer, it should make contemporaneous notes of the conversation to confirm what was asked and what was stated to the party seeking the reference.
Wanting a positive reference, what should a dismissed employee do? I recommend that the terminated employee prepare a draft that he or she believes the employer will agree to. Obviously list any positive characteristics and the reason for the termination if it does not portray the employee in a poor light.
References can be a powerful motivational tool if your employees know that the quality of their performance will follow them throughout their career.
• Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.
Jun. 9, 2018 "Ford will need discipline for first 100 days as premier": Today I found this article by Harvey Schachter in the Globe and Mail. I was kind of "eh" with Doug Ford becoming premier of Ontario. I don't live in Ontario so he doesn't really have an effect on my life.
When CEOs take office, they are commonly told they have three months to produce a plan, if not action. The idea arose during Franklin Delano Roosevelt’s famed first 100 days in power in 1933, and three months is now a fairly common milestone for all leaders. Doug Ford, chief-executive-turned-premier, will now step into that leadership spotlight.
The transition to power is a rational process, with obvious steps, but carried out in a frenzy. Mr. Ford seems to live life in a frenzy – certainly he has since being the first to boldly jump into the PC leadership race while others dithered – but his version of rationality isn’t yet clear. That is perhaps because he had erected such a strong protective barrier in the campaign - keeping the media at bay and doing few interviews – or because he prefers to rely on his gut instinct. Bill Davis he is not.
Leadership boils down to people, policies and communications. Mr. Ford is an outsider as leader. He has no direct experience with Queen’s Park and the government apparatus he heads. His experience within his own party is not the deepest either. And he now has to scramble to organize his cabinet.
He will need to be disciplined and keep control, while facing inordinate demands on his time. David Peterson told me that after he came to power suddenly in 1985, with an inexperienced crew, every decision of importance was made in his office, in meetings he presided over or, when simultaneous sessions were needed, with attorney-general Ian Scott in command of the second group in a nearby alcove.
Mr. Ford will have help, if he wants it, from the government bureaucracy. But often populists and Conservatives – and he is both – scorn the bureaucracy, seeing them as just more aloof elitists, probably with a liberal (if not Liberal) bent.
The top tier of the civil service will have spent the campaign period studying the platforms of the PCs (and NDP) in detail, looking at how best to implement the stated policies – what are the stumbling blocks, what can be quickly implemented, what are the items that will need considerable study to make more workable?
But not even Progressive Conservatives can be sure of what their party’s platform is. The platform of the Patrick Brown era was quickly jettisoned as the new leadership race kicked off. Under Mr. Ford, it has been more directional than specific, relying on a general approach of being more frugal with the taxpayer’s money and ensuring business and the economy is firing on all cylinders.
It’s hard to imagine a party coming to power in recent years with a less defined platform. But Mr. Ford knows himself and his instincts, and seems comfortable with them. That can work well in a corporation, where there is little challenge to authority. Politics is, however, about daily challenge, even when you have a majority.
The first rung of people, formally, will be the new cabinet (although his own aides will presumably have more power). He has many veterans and promising newcomers to choose from. Ultimately, most governments come down to just a handful of key cabinet ministers who must perform well.
Finance may be his toughest or most critical choice: whether to go with veteran Vic Fedeli or Rod Phillips. Either way, with them and Christine Elliott – long-time friend, very recent rival – Caroline Mulroney, Lisa McLeod and former interim party leader Jim Wilson, he has some obvious key people. A mix of loyalty, friendship and competence will determine the key ministers.
Finance may be his toughest or most critical choice: whether to go with veteran Vic Fedeli or Rod Phillips. Either way, with them and Christine Elliott – long-time friend, very recent rival – Caroline Mulroney, Lisa McLeod and former interim party leader Jim Wilson, he has some obvious key people. A mix of loyalty, friendship and competence will determine the key ministers.
Drawing political staff to back the ministers should be easy, with the Conservatives so recently in power in Ottawa, but choosing from them is always a tough task for a new government. Indeed, two basic dilemmas inevitably arise, whether to pick them even before the cabinet ministers are picked or after, and whether the premier’s office or the minister’s office makes the choice.
Words are not Mr. Ford’s strong suit. Queen’s Park is in some ways a political backwater, not gaining much attention compared with Ottawa and, in Toronto, city hall. But as leader of the most populous province, Mr. Ford is now a national player.
People, policy and communications. Even if he gets it right – or mostly right – in the first 100 days, it can still fall apart badly, as his predecessor and many CEOs have learned.
Cannonballs
A leitmotif of Doug Ford’s campaign was that he makes quick decisions – something he and his main spokeswoman repeated over and over. Jean Chrétien also prided himself on his ability to make decisions. Former U.S. president George Bush called himself The Decider.
In recent days, Justin Trudeau has also had to make some tough decisions, on the Kinder Morgan pipeline and tariffs. Leadership requires decisions; quick is good, but so is contemplative. Being right is best.
In recent days, Justin Trudeau has also had to make some tough decisions, on the Kinder Morgan pipeline and tariffs. Leadership requires decisions; quick is good, but so is contemplative. Being right is best.
Mr. Ford grew up in his family business, Deco Labels, and knew it intimately as CEO. In some ways, he grew up in politics as well but he has not distinguished himself with his grasp of details. An interesting model for him would be the one Brian Mulroney adopted from business, with him as CEO and – for a period – Don Mazankowski as chief operating officer. Mr. Ford seems like a one-man band, but so in many ways was Mr. Mulroney; however, he knew enough to have a COO.
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