Both employers and employees alike have questions about what they can say or should not say about why an employee left their former employment. This concern becomes heightened when the employee was fired for cause or resigned due to accusations relating to misconduct. What can the employer say? Should they refrain from saying anything? What about providing a reference letter?

This blog tries to answer some of those questions. Particularly, this blog looks at what details a former employer may disclose about a former employee or the former employee’s termination, how defamation may play a role in certain circumstances and the issue of references letters.

What Details a Former Employer May Disclose

A former employer can disclose information to a new employer or prospective new employer about a dismissed employee if that information is true so long as it is not confidential. However, the former employer cannot disclose to new or prospective employees certain information if that information that is false or even misleading.

It has been our experience that a lot of employers are quite reluctant to disclose any information beyond simple details to new or prospective employers when they have terminated their employee’s employment. For example, employers have concerns that disclosure of any information could breach the employee’s privacy or confidentiality and that they could even be held accountable for any misstatements that they may make to new employers even if those misstatements are made in error and are minor in nature. As such, it is the majority of employers’ preference to instead provide an employee with a curated reference letter to be provided to new or prospective employers to help in the employee’s search for new employment.

How Defamation Can Play a Role in Certain Cases

Defamation may have a role in certain situations where an employer has made false statements about an employee to a new employer that are made with malice or recklessness. For example, the old employer states to the new employer that the employee was fired for cause due to some sort of gross misconduct or dishonesty when they were not fired for those reasons or for cause at all. In this situation, the employee may claim that there were defamed by their former employer and seek damages. However, in other cases, such as where the former employer may be giving the new or prospective employer their opinion of the employee, this may not meet the threshold of defamatory conduct, and the defence of qualified privilege will apply in those cases.

What about Reference Letters?

This is a key concern for a lot of dismissed employees. Employees often wish to obtain a positive reference letter in order to help them find a new job. However, legally, the employer does not have an obligation to provide a reference letter at all.

Despite the above, it would be a good idea for employers to provide reference letters to dismissed employees even if it is simply a neutral one (often referred to as a “letter of employment”). This is because failing to provide a reference letter to a dismissed employee who was terminated without cause could result in that employee having difficulty in obtaining new employment. However, to be clear, this would be in situations where the employer has terminated the employee without cause.

In contrast to the above, in situations where the employee has been dismissed “for cause” due to serious misconduct, the employer should not provide a reference letter to that employee before approaching an employment lawyer to discuss the case at hand. This is because providing a reference letter in cause cases may hinder the employer’s ability to claim cause if an employee decides to sue the former employer for wrongful dismissal. It will also result in providing an inaccurate description of the employee to future employers who will be “inheriting” a problem employee.

How Zeilikman Law Can Help

Our employment lawyers routinely help both employers and employees with employment law issues post-employment. Particularly, we can help determine what obligations either party has after employment has ended.

If our readers would like to review our blogs that are relevant to the topic of post-employment obligations, please look at:

• What obligations do departing employees have to their employers?
• Wrongful Dismissal: Special Considerations for Executive Employees in Ontario

Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule your own confidential consultation with one of our employment lawyers.