Aug. 19, 2017 "How to protect yourself against a disparaging reference": Today I found this article by Daniel Lublin in the Globe and Mail:
Daniel Lublin is a partner at Whitten & Lublin, Employment & Labour Lawyers.
“If you don’t have anything nice to say, then don’t say anything at all” is a maxim that applies equally to law as it does to life – except when it comes to providing a bad reference for a former employee. In two recent court cases, employees found this out the hard way.
Adam Papp was let go as an economist at Stokes Economic Consulting Inc. The next day, Mr. Papp e-mailed the president, Ernest Stokes, asking to use him as a reference for future employers. Mr. Stokes gave Mr. Papp the green light.
Soon after, Mr. Papp applied for a lucrative opportunity with the Yukon government as an economic statistician. His interview went well and he was set to get the job, once his references checked out.
Relying on Mr. Stokes’s assurance, Mr. Papp listed him as a reference. However, when Mr. Stokes was contacted, he suggested that Mr. Papp was fired in part due to a “performance and attitude problem” and that he had a chip on his shoulder. Mr. Stokes indicated there was “no way” he would rehire Mr. Papp. As a result, Mr. Papp was disqualified for the role.
Mr. Papp sued Mr. Stokes and the company for $500,000 for defamation and punitive damages claiming that the poor reference was unfounded and cost him the new job.
However, the law of defamation provides employers with several strong defences. First, if disparaging statements are true, then a former boss or employer is entirely justified in telling the truth.
Second, where untrue or otherwise defamatory statements are made in the context of an employment reference, unless the statements were made maliciously or recklessly, the law provides immunity to the party making the statements.
Mr. Stokes testified that, after he agreed to act as a reference for Mr. Papp, he learned from other employees that Mr. Papp could be difficult to work with. Therefore, the judge found that his statements (which were otherwise defamatory) were substantially true. Also, since Mr. Stokes made the statements during a reference check, he could not be successfully sued for slander.
In another very similar recent case, an individual sued her former boss for defamation because a number of statements he made about her during a reference check caused her new employer to fire her.
Although the statements were indeed defamatory, they were also made in the context of a request for a formal reference, and therefore, enjoyed immunity from a successful lawsuit.
In order to get around this hurdle, the plaintiff alleged that the statements were motivated by malice, saying her former boss harboured a desire for revenge against her based upon events where she claimed to embarrass him or had shown him to be wrong. But the judge did not believe this explanation and found that the defendant wasn’t motivated by any spite or ill-will and that her lawsuit could not succeed.
To the chagrin of many ex-employees, as it currently stands, the law of defamation in Canada makes it nearly impossible to successfully sue a former boss or employer for slander when disparaging and even untrue comments are made in the context of a request for a reference.
Collectively, many employers will breath a sigh of relief, knowing they can safely hide behind a broad legal shield should they want to freely speak their minds about ex-employees, but only if first asked to do so as part of a reference inquiry. Especially for this reason, departing employees – and their lawyers – will want to take care to ensure a greater level of protection.
Here are some of my own tips:
Pin the employer down.
As part of any severance negotiation that I handle, I routinely demand that employers provide a letter reiterating some of the positive statements from past performance reviews and some major accomplishments, if not a full letter of support.
I then require that the employer agree to take steps to ensure that any reference request be directed solely to the person who signed that letter, who must agree not to state anything inconsistent. If it turns out that a subsequent reference check goes awry, then at the very least you can sue the employer for violating the settlement, if not defamation.
Choose your references wisely.
Former employees have almost complete control over who acts as their reference. If you are unsure what a former manager is going to say, then you’re better off not taking a chance.
Secure the commitment of someone who can speak to your skill but who you can trust is not going to disparage you.
Save your performance reviews.
A successful defamation suit over a reference inquiry requires the defamed employee to prove recklessness, malice or ill-will. If a former manager’s critique is inconsistent with his or her own prior written performance appraisal, or one that he or she saw and approved, then not only will his or her credibility and own competence be questioned, malice may well be inferred.
Jun. 16, 2018 "A tragic, cautionary tale about reference letters": Today I found this article by Howard Levitt in the Edmonton Journal:
Bad unions and timorous employers — a lethal combination, literally.
Management at the nursing home where she worked had concerns about Elizabeth Wettlaufer’s state of mind for years before they finally fired her. In August 2011, it was recommended she take a leave of absence because of her conduct. She refused and the nursing home did not press the issue.
The result? She went on to kill three patients, having already killed two in 2007. In August 2012, management considered reporting her to her licensing body based on “unfitness to practice,” which would have ended her career. Again, it backed down. She killed two more patients before her dismissal in February 2014.
Why did the company not proceed earlier? Because it knew that the irresponsible and trigger-happy union would grieve. Carressant Care felt it could not afford to pay the legal expenses of fighting the grievances — and potentially also pay Wettlaufer back pay if it lost the arbitration.
These were funds it required for its patients, it claimed. When Carressant finally fired her, she had so many instances of accumulated misconduct that, when the home sent in the termination form to the College of Nurses of Ontario, it ran out of space on the form.
Predictably, the union grieved her dismissal. Rather than fighting it, Carressant Home paid Wettlaufer $2,000 and gave her a letter of reference. What did the nursing home write about its in-house serial killer? That she was a “good problem solver with strong communication skills” and further lied that she had “left to pursue other opportunities.”
As well as being an object lesson as to some of the difficulties with unionization in this country, this is a cautionary tale about letters of reference. If she had not been arrested and charged with first-degree murder and other offences, she doubtless would have found another job and, based on her pattern, continued her killing spree.
Then, the new employer and the families of the other victims would have had an excellent case against Carressant and the individuals who provided and authored the false reference. It might even have an action against the union for conspiracy for its participation and co-operation in this sham.
Employers should be cautious when providing false references. They are prepared for the very purpose of being relied upon. When they are false and damages result, there are legal consequences.
Carressant Care might have avoided much of this by reasonable due diligence. Wettlaufer had twice been to rehab for alcohol and opioid addiction.
It is often too easy to resolve disputes in part through a letter of reference, but the consequences can be very significant.
If an employee deserves a positive reference, by all means provide one. The court can impose damages against employers who refuse to provide a deserved reference in the context of a dismissal case.
However, if an employee deserves a negative reference, silence can be golden.
• 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. Twitter.com/HowardLevittLaw
There are 3 comments:
Shannon Mitchell:
So yeah...it's the union's fault..for..existing?
Oh, and lets not forget that none of this has anything to do with the murders themselves. I sincerely doubt either the union or the nursing home would have backed her if they had any idea what was going on.
Just a thinly veiled cheap shot at unions in general. Nothing to see here, folks.
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Agreed. I'm tired of reading 'union-blaming' articles as if the employer has no part to play. Union contracts are referred to as 'Collective Agreements' for a reason. If the employer doesn't follow the collective agreement regarding disciplinary issues of course the union is obliged to support their member. The union didn't force the employer to write what appears to be an almost glowing recommendation - a letter detailing length of employment & not much else should have been sufficient.
not sure it's the union's job to support "no matter what" -even the militant BC teacher's union did not support a teacher who said she was too injured to wok as a teacher was on disability, and opened a studio teaching yoga
they can't put one person above the whole membership's interests
Like · Reply · 2d
This week's theme is about reference letters. However, I only have enough articles for 2 blog posts:
"Ensuring proper accommodation for transgender workers"/ "After gender transition, a woman in the workplace sees how the other half works"
"Give references the attention they deserve"/ "My offer was rescinded after a reference check. Now what?"
My week:
Jul. 13, 2021 "Instagram influencer, 32, dies taking photo at popular waterfall": Today I found this article by Emily Lefroy on Yahoo News:
An Instagram influencer has reportedly died while taking a photo at the edge of a popular waterfall in Hong Kong.
Sofia Cheung, 32, was hiking with friends at Ha Pak Lai park on Saturday (local time) when they stopped to take photos at a popular scenic lookout.
Ms Cheung was posing for a photo on the ledge of Tsing Dai stream near Yuen Long, when she lost her footing and and fell nearly five metres into the pool below, according to The Sun.
Her friends called emergency services and Ms Cheung was rushed to a hospital in Hong Kong, but was declared dead on arrival.
Her social media page lists hiking, kayaking, exploring, outdoor activities and photography as main interests, as well as stating: "Life should be fun not dumb."
The influencer's last photo, posted on July 9, was captioned: "Better days are coming: they are called Saturday and Sunday."
My opinion: I have seen and heard about people trying to take pictures and getting hurt or killed. Please be careful.
Jul. 15, 2021 "Lotto Max $65,000,000 ticket winner was 'almost homeless' and wants to help other military veterans": Today I found this article by Elisabetta Bianchini on Yahoo News. This is a positive news story:
Former member of the military who suffered a traumatic brain injury, Jansen Ng of East Gwillimbury, Ont., has charitable plans for his $65 million Lotto Max jackpot win from the July 6 draw.
The 41-year-old occasional lottery player bought a Quick Pick ticket at Marina’s Express Mart on Leslie St. in Sharon, Ont., while he was playing Pokémon Go.
"I had heard on the news that the jackpot had been won in my local municipality of York Region, but it didn’t really click that it could be me," Ng said.
"A few days after the draw, I went to check the ticket on a ticket checker and the message said, ‘Please See Retailer.’ I thought the ticket checker was malfunctioning and decided to check the ticket at home on the OLG Lottery App."
When Ng saw the "Big Winner" message on the app he was in disbelief and kept checking it on other devices. He finally went back to the retailer with the ticket and that’s when he truly got excited.
The first person Ng told about his win was his pastor.
Ng wants to continue to support charities and is exploring ways to set up not-for-profit foundations.
"I have travelled extensively over the years, saw much poverty and want to try to make the world a better place with some of this money," he said. "Lottery winnings used strategically and intentionally can impact the community far beyond just a simple donation."
Lotto Max $65M ticket winner was 'almost homeless' and wants to help other military veterans (yahoo.com)
Jul. 24, 2021 "Woman said to be the oldest nurse in the U.S. retires at 96": Today I found this on the National Post. This is heartwarming:
Seven decades after her career began, Florence “SeeSee” Rigney, a nurse in Washington, has decided to hang up her scrubs once and for all. Last week, after a lifetime spent tirelessly in service, the woman said to be the oldest working nurse in the U.S. retired at age 96.
Rigney originally planned to retire 30 years ago, when she was 65, but that only lasted about six months. She returned to her beloved post, working at MultiCare Tacoma General full-time and only switching to part time shifts in the last couple of years, the hospital said in a news release.
“I don’t like to sit around – I’ve always got to have something to do. That’s my nature,” says Rigney. “I don’t know exactly what made me want to become a nurse, but it was something that I always wanted to do. I love to interact with patients and give them the help that I can.”
Woman said to be the oldest nurse in the U.S. retires at 96 | National Post
"Why a first-time parent decided to adopt a 20-year-old": I found this article by Ariel Fournier on CBC News. This was published on Nov. 18, 2020:
Shannon Culkeen met her future "kiddo" when she was working as a mentor to youth transitioning out of homelessness in Peterborough, Ontario.
She remembered Cheyenne as a tough teenager with a regal stance, who was willing to threaten the life of anyone who dared touch her bag of Cheetos.
Shannon would take Cheyenne on long drives, getting to know her better. She found out about her goals, her taste in hip-hop, her affinity for decorative pillows covered in glitter.
They kept in touch.
Shannon was there for Cheyenne's high school graduation and her first powwow dance.
She supported her in decisions about post-secondary school and through a medical crisis.
While filling out an application to become a foster parent, it occurred to Shannon that she had become more than a mentor to Cheyenne. The form asked if she had any other children and she thought, "Oh no, I think maybe I do."
They moved into places a block away from one another. They adopted a puppy named Bruno together. And they continued to take daily drives to talk about life and their future plans.
Cheyenne Marilyn Marie Kirk Jacobs-Culkeen turned 20 in October. In a few months, she will mark another milestone, with a legal letter (or a notice for a court date) to confirm she is legally Shannon's daughter.
Why a first-time parent decided to adopt a 20-year-old | CBC Radio
Jul. 29, 2021 Clarice: Last week I watched the last 8 of the 13 episodes of this show.
This show was average. There wasn't a lot of action.
Hannibal: I would rather watch this show. I saw the first season and a half on Netflix last year. I stopped because my fall TV shows came on and I watched another show on Netflix.
However, I checked and the show was removed. I sent to Netflix to get them to put that show on their website.
The Republic of Sarah: I have been watching this show (4 episodes) for the past week. This is average.
A Million Little Things: I will now be watching this show. I watched a few of my recordings here and there.
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