Canadian HR Reporter

Canadian HR RepoRteR december 1, 2014 FeAtures 15 employment law Stop fighting over reference letters Letters aren't that important so stop pretending they're such a big deal By Clarence Bennett w e often hear of divorce s t o r i e s f e at u r i n g couples fighting over something meaningless. the marriage is over, the finality of divorce hasn't set in and they are stuck fighting over who gets the toaster. Neither person needs a toaster — they just want some- thing to prolong the conflict. In my view, the employee refer- ence letter is to employment law- yers what the toaster is to family lawyers. Most of the ink spilled and time wasted discussing reference letters has come as a result of an employer refusing to provide a letter of reference after a termina- tion, without a legitimate reason. Despite popular opinion, the law does not require an employer to provide a reference — this was confirmed in 2008 by the Ontario Court of Appeal in Titus. While courts have held that bad faith damages may arise when an employer unnecessar- ily withholds a reference, the Su- preme Court of Canada in Keays said damages cannot be automat- ically awarded without proof of actual damages: "If the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary exten- sion of the notice period but through an award that reflects the actual damages." It will be difficult for any em- ployee to prove damage arising from a previous employer's failure to provide a reference letter — this is especially true when a pre-made reference letter reeks of despera- tion in an application package. Optional or inconsequential While a reference letter may be as helpful as a hairpiece in an inter- view, it doesn't mean employers should exercise their technical right to refuse. Employers have every interest in seeing former employees find alternate employment and should do what they can to assist (or ap- pear to assist) in that process. Also, some encouragement should come from the British Columbia Supreme Court in Ver- non v. British Columbia (Liquor Distribution Branch), where the court ordered the employer to pay $50,000 for offering a refer- ence letter in exchange for res- ignation, and also the Quebec Court of Appeal, which awarded a teacher $5,000 in damages for the employer's failure to provide a reference letter. Neither would have happened if the employer simply treated the reference letter in its giving as in its receiving — as a useless piece of paper. While these cases are more about the employers' bad behav- iour than reference letters, an impractical stance on providing letters of reference can provoke damages. If you can't say something good… Providing negative references is more problematic. In light of the Supreme Court of Canada's decision in Young v. Bella (and common sense), they need to be backed up with provable evidence. ere is no upside to providing a negative reference and, frankly, it is difficult to imagine a court awarding damages against an employer whose conscience pre- vents her from providing a posi- tive reference. In Young v. Bella, the court sug- gests employers can be held liable for negligently providing a nega- tive letter of reference. However, it is rare for an employer to refuse giving a reference letter after ter- mination because of legitimate reasons not to — they just don't want to. Employees are more often under whelming than corrupt. Admittedly, undeserved and unwarranted positive references prior to termination can also be problematic. A prime example is the mindless recommendations on LinkedIn. It's difficult to argue an employee is incompetent while praising his attributes in writing. However, by allowing managers to "recommend" people on Linked- In, managers and co-workers are forcing HR and lawyers to do just that. Employees are encouraged to enhance their profiles online by asking for recommendations from co-workers and supervisors. And co-workers and supervisors are reluctant to refuse when asked, re- gardless of whether the employee is a good worker — therein lies the problem. e solution is simple: Encour- age employees to enhance their profiles online through sites such as LinkedIn — but do not recom- mend anyone without careful con- sideration. Human nature makes it difficult for a person, when asked, to deny the request to "rec- ommend" someone. erefore, a "no recommending employees on LinkedIn" clause in a social media policy is helpful. It provides an ideal excuse when denying an em- ployee that request and, hopefully, avoids causing offence. HR as gatekeeper All the controversy can be avoided if employers have a policy with respect to reference letters that clearly makes the task one for HR. Human resources has the in- formation about whether an em- ployee's performance can justify a positive reference. is removes the emotion of the manager and the element of surprise in litiga- tion when it's revealed a reference letter was refused. It also builds in a real assessment of whether an employer can say something good as opposed to nothing at all. ere is no reason to fight over the toaster. If you have legitimate, provable reasons that prevent you from providing a positive letter of reference, then don't. e letter of reference doesn't have to be a letter of recommendation, it can simply attest to an employee's skill or, at the very least, experience. If you are ambivalent, highlight an area the employee did well and provide a letter of reference that is helpful — more often than not, a litigious employee wants a refusal more than a letter. e reference letter could go back to being meaningless if we all stopped pretending it was a big deal. Use judgment and pro- vide what you can, if you can. No employer has ever been criticized for providing a letter of reference that wasn't sufficiently "glowing." Take the high road and stop allow- ing employees to unnecessarily prolong the dispute. Clarence L. Bennett is a partner at Stewart McKelvey in Fredericton. He can be reached at (506) 444-8978 or cbennett@stewartmckelvey.com. Credit: Micha Klootwijk/Shutterstock

• Cover