June 9th, 2010
I’m often asked about the law around job references after you have left a job: “Do I have to give a reference?”, “Am I entitled to a reference?”, “What am I allowed to say in a reference?” First off, after a dismissal, employers are NOT legally required to give former employees references. Although, it may be in an employer’s interest to give a reference because it enables an employee to find a new job - thus do what lawyers call “mitigate damages”. That is, an employer can argue that an employee is entitled to less severance pay because they haven’t looked hard enough for a job. Providing a job reference to an employee is one way in which an employer can a former find that new job.
An employer is NOT required to give positive job references - a fact that many employees find surprising. In fact, an employer may find themselves in hot water if they write a reference for an employee, knowing that another employer will rely on that reference, and they write something that they know is untrue. In that case, an employer is “negligently misrepresenting” a former employee’s qualifications.
On the other hand, an employer cannot say malicious things about an employee. If an employer, for whatever reason, will write a negative reference, then they need to make absolutely sure that they can back up what they say. It’s not good enough for them to say: “David was a poor performer.”. It would be more accurate to say, “For two years in a row, David failed to achieve sales targets, of which he himself established.” This enables the employer to fall within the “qualified privilege” and “fair comment” defences to the very complex law around libel and slander law.
These are fairly theoretical circumstances. Basic common sense should rule the day:
- If you can’t say something nice about someone, don’t say it.
- If you are going to say something about someone, stick to the facts and tell the truth.
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May 31st, 2010
Recently, someone asked me whether they could sue their employer after they were dismissed and the employer provided them with a good reference on LinkedIn. The short answer is: not really. But, like all things legal, it depends. Here are two common scenarios:
Employer dismisses employee without cause, but provides a good reference
Any employer can dismiss an employee, without cause, as long as they ensure that the employee receives proper notice ahead of time that the employee’s employment will end. The employer can choose to require the employee to work out the rest of his or her employment; or, the employer can choose to pay out the employee’s remaining employment salary and benefit entitlement. Either way, the employer is not providing any reason for the termination and is not required to provide one. So, providing a good reference on LinkedIn does not enable the employee to somehow claim extra damages against the employer.
Employer dismisses employee with cause, without notice, but provides a good reference
This is a very unusual situation. But, I am told that it happens. This is a dangerous situation for the employer to be in. By dismissing the employee without giving him or her notice or some severance package, the employer acts as if it had a good reason to dismiss an employee without providing proper notice. These situations are EXTREMELY rare. Situations that would justify this include theft, fraud, significant insubordination, and other behaviour that damage the trust between employer and employee. A simple mistake on the job would not normally enable the employer to terminate an employee with cause and without notice. Employer can choose to make this decision; however, if they go on to provide a supportive reference to the employee on LinkedIn, then the employer can expect the employee to argue something like the following:
- my employer’s reference demonstrates that I was doing a good job
- my employer does not, and did not, have good cause to dismiss me
- if my employer wanted to dismiss me, then they should have given me notice
- I didn’t get notice and so I can sue them for wrongful dismissal
It’s just inconsistent for an employer to dismiss an employee for cause (without notice) and then go on to say how great of an employee he or she was. Furthermore, employers expose themselves to potential (rare, but possible) litigation if their reference and endorsement turns out to be wildly false and misleading.
Recommendation
So, in short, if you’re an employee, appreciate the LinkedIn endorsements whenever and however you get them, even if they’re from an employer who just fired you. Employers - be truthful and consistent about why and how you dismiss your employees, including how you communicate that event to the public.
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May 3rd, 2010
We are launching FairDismissal.com at the BC Human Resource Management Association’s 2010 Conference. You can see more conference details at http://www.bchrma.org/content/events/conf/2010/index.cfm. Come visit our booth at the trade show and see a demonstration of www.FairDismissal.com and get a discount code.
One of our co-founders, Chilwin Cheng, will be headlining a panel conversation on Hot Topics in Employment Law on Wednesday, May 5 at Conference 2010. For more information on this and other sessions, please refer to www.bchrma.org/conf2010. Follow us on Twitter at #fairdismissal!
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May 3rd, 2010
The team at Paradigm Shift Solutions Inc. is thrilled to introduce our latest offering, FairDismissal.com (http://www.FairDismissal.com). With this offering, we aim to serve Canadian small-to-medium sized businesses by providing value-priced legal information and assistance with a common challenge faced by employers of all sizes.
At some point in their life cycle, all large businesses, and most SMEs, must dismiss an employee. In most of those cases, the employers choose to dismiss the employee “without cause”. Usually, this means that there is some change in economic, business, or financial circumstances. A job isn’t right for an employee anymore. The business is shifting or downsizing. Or, the employee just isn’t working out, but the performance isn’t so bad to amount to just cause for dismissal. In all of those cases, Canadian businesses need to give their employees notice and in most cases, must pay out some form of severance payment in lieu of notice.
We’ve taken the technology and powered our first service: www.FiredWithoutCause.com (http://www.FiredWithoutCause.com) and added features and content that are more useful to businesses rather than employees. You will find features to manage multiple employees and maintain audit trail. Most importantly, we’ve added risk management features that cater to the operations and finances of most small businesses.
Here’s what customers can do with FairDismissal.com:
- compare employee profiles against the largest database of publicly accessible, web-enabled Canadian court decisions on wrongful dismissal
- access standard dismissal language, used by lawyers, to include in dismissal letters, including a standard release form
- analyze lump sum severance payments to see if they comply with provincial employment standards legislation and historical common law expectations
- store and manage multiple employee profiles for audit trail purposes
- analyze dismissal trends in your company by comparing multiple employee records in one location
- get helpful tips and general information about wrongful dismissal and negotiation strategies geared for employers
We’ve got plenty of features in the pipeline under development and we can’t wait to roll them out. Let us know how we’re doing and what features we can add to improve the FairDismissal experience!
This is just our latest product to Bring Law to the People!
The Paradigm Shift Solutions team
Jim Hamlin and Chilwin Cheng
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