In most circumstances, acting as a reference for past employees is a simple, straightforward process. There are, however, some situations where complications can arise that may put the employer in an awkward position. For example, if an employee leaves on negative terms, they may still seek a reference from you to aid in their search for new employment. In these situations, employers should tread carefully to avoid potential defamation claims. Take the case of  Papp v. Stokes as an example:

Adam Papp commenced employment with Stokes Economic Consulting Inc. as a staff economist in March, 2011. His employment was terminated without cause in December, 2013. Following his termination, Mr. Papp asked Dr. Ernest Stokes (the president of the company) whether he would act as a reference for a job application, and Dr. Stokes agreed.

When Mr. Papp reached the concluding stages of the interview process for a new job as a socio-economic statistician with the Yukon Government, the interviewer told Mr. Papp that she needed to check his references.

The interviewer spoke with Dr. Stokes. In response to the interviewer’s specific questions, Dr. Stokes stated that Mr. Papp did not get along well in a team setting, had a chip on his shoulder, and there was “no way” that Stokes would re-hire Mr. Papp.  Mr. Papp was not offered the position with the Yukon Government as a result of the negative reference provided by Dr. Stokes.

Mr. Papp pressed charges for wrongful dismissal and defamation against his former employer, and sought $65,000 in damages for wrongful dismissal, as well as $500,000 in damages for defamation; $200,000 in punitive, exemplary, and aggravated damages; and $30,000 in damages for intentional infliction of mental suffering.

The Ontario Superior Court of Justice found Mr. Papp’s defamation claim against his previous employer for an unfavourable reference could not succeed, because the reference was justified and fell “within the range of qualified privilege”. Mr. Papp was awarded damages in lieu of reasonable notice of termination, but the rest of his claim was dismissed. What can employers learn from this case?

5 lessons employers can take away from this case:

1. Make sure you can justify any negative reference claims

Any claims made in a reference must be fair, accurate, and published without malice. In this case example, the defendant successfully claimed “qualified privilege” as a person of authority and trust to fully defended the claim of defamation. It’s important for employers to understand qualified privilege in the event of such defamation claims.

2. Be confident you can prove any claims

In the case of Papp v. Stokes, the defendants called evidence to prove that Mr. Papp was difficult, that his co-workers did not perceive him to be a team player, and that his co-workers believed he had a poor work ethic. Based on the evidence, the Court accepted that Dr. Stokes’ reference was substantially true, and the negative reference was therefore justified.

3. Understand what constitutes as “reasonable notice”

Mr. Papp failed to establish malice or recklessness to challenge qualified privileged, however, he was successful in receiving damages in lieu of reasonable notice of termination. Always ensure any termination of employment meets the requirements of reasonable notice.

4. Take comfort in knowing you CAN provide a negative reference

It’s common for employers to feel uneasy about delivering an honest, negative reference. However, so long as an employer can prove that a negative reference is substantially true and not malicious or reckless, then employers should not feel the need to censor or misrepresent a candidate.

5. Understand the law before acting in haste

If you’re in any doubt that your actions may not be lawful and fair, always take the time to learn the finer details before proceeding with any action. If in any doubt, please contact our team for advice.

To learn more about Mr. Papp’s case, please refer to the full article – complete with enclosed PDF of the Court Case Report.

Papp vs. Stokes full article: https://ropergreyell.com/resource/can-employers-unfavourable-reference-ground-claim-defamation/