Jul 6, 2017

Protection After Termination: Reference Your References in a Settlement

Papp v Stokes et al, 2017 ONSC 2357 (CanLII)

Protection after Termination: Reference Your References in a Settlement

In searching for new employees, employers often want to assess the ‘fit’ of any employee: will the person mesh well with others within the current workplace environment? It is difficult for employers to fully assess an employee’s fit with just application materials and interviews. Oftentimes, these methods are insufficient to show how an employee would truly act in the workplace. To tackle this issue, employers often ask prospective employees to provide references from previous workplaces. The references provided, whether positive or not, can make or break a prospective employee’s chances at employment.

This is why it is important that if you are let go to hire an employment lawyer and ensure that your reputation is protected after you were let go.

Case in Point

In Papp v Stokes, 2017 ONSC 2357, the Plaintiff was terminated from his position of staff economist that he held for nearly three years. Following his termination, the Plaintiff asked Mr. Stokes, his former employer, to be a reference for him in his ongoing job search. Mr. Stokes agreed.

In the months following his termination, the Plaintiff went through the recruitment process for a Socio-Economic Statistician position with the Yukon Government. Following the initial application process and interviews, the Plaintiff was the top-ranked candidate for the position. However, he was denied the position following a negative reference provided by Mr. Stokes.

As part of his action for reasonable notice, the Plaintiff brought an additional action of defamation against Mr. Stokes. While the Plaintiff was successful in his case for notice (receiving 4 months’ notice compared with the statutory minimums he received at termination), the court held that Mr. Stokes was not liable for defamation. Mr. Stokes, through several witnesses, had demonstrated that the information he provided to the Yukon Government was substantially true and not provided maliciously. While the Plaintiff testified that he was not made aware of any of the issues while working with Mr. Stokes and his co-workers, the trial judge found that it does not detract from the truth of the evidence of Mr. Stokes and other employees about the Plaintiff’s workplace fit. On this basis, Mr. Stokes and his company were found not liable for defamation.

Protecting Your Future Interest

As seen above in Papp, the contents of a reference can be fatal to an employee’s prospects despite being the best qualified for the job. While it is undisputable that many employees bring actions for additional notice, it is equally important to ensure that references for future employment are at the very least neutral in tone and content. As seen above, an employee may have no idea that issues pertaining to attitude existed yet subsequently suffer in any future job search.

Cases relating to employment often settle outside of court with the parties coming to a compromise on additional compensation paid to an employee. As part of a settlement, an employee has an opportunity to have a say in what goes in any future references for the employee, and in doing so can prevent a situation in Papp from happening to them. It is important to receive good advice before leaving a position to make sure all your bases are covered.

About the Author

Andrew Monkhouse is the founding lawyer at Monkhouse Law (www.monkhouselaw.com), a predominant Toronto boutique firm that focuses it's practice on Employment, Human Rights and Disability Insurance Law including class action matters.

NOTE:

The above post is general information about this specific case. If you have specific questions about your employment situation, you can contact Monkhouse Law for a free phone consultation.