Author: Daniel A. Lublin
A letter of reference is the final request made by many of the recently departed. However, whether we like it or not, the trend for Canadian businesses is to provide a simple letter of confirmation instead; delineating only the rank and file and carrying little, if any, useful commentary. As a result, oral references have taken on a more significant role, and much to the chagrin of many employees. The problem with an oral reference, accordingly to many of my own clients, is that the content and the supplier can sometimes remain a mystery, effectively giving an ex-employer the green light to say what it pleases, if and when consulted for a reference. In some cases, an inaccurate review given by a hostile ex-manager, or a human resources rep that had little or no contact with the employee, can be the straw that breaks the camel’s back when it comes to obtaining a sought after future position. With so much depending on a strong oral reference, the question I’m frequently asked is whether or not anything can be done to determine whether an ex-employer will play naughty or nice.
Therefore, for those employees concerned about an unfavourable oral reference, from a mystery source none the less, I suggest that you consider the following:
Seek an agreement with your ex-employer that all oral references will be consistent with the contents of a letter of reference and directed only to a chosen signatory. While a letter of reference is not mandatory, for various good reasons most employers will ultimately provide one. When I act for employees, I ensure that the terms of any settlement include a confirmation that oral references will be consistent with the letter of reference and given only by an individual that my client feels comfortable with. By doing so, I can confine companies to statements that are agreed upon in advance and reassure my clients what can and cannot be said by their ex-employer.
Some of my clients have been denied positions and were virtually certain the loss had much to do with a negative reference – from an unknown source. In these cases, they almost unwaveringly point the finger at an old boss, whether there is proof or not. The question I’m then asked is how can their suspicions be confirmed? If you are denied a position and you have a good reason to believe that the employer was given a false reference from a source you did not consent to, you can bring an application under the Consumer Reporting Act. If successful, the employer may then be obliged to tell you the source and nature of the reference and you can finally get to the bottom of a bad reference from a mystery source.
In those extreme cases where you learn or hear of information conveyed about you that was untrue and damaging to your reputation, you can consider a defamation suit. Defamation is, however, very difficult to prove. You must demonstrate that the unfounded statements are conveyed, the person making the statements knew they were untrue, and as a result, your reputation was injured or your status reduced in the community. Ultimately, while a defamation suit may be impractical, the threat of such an action can ease your apprehensions if worried about an untruthful oral reference.