A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

If you can't say anything nice...

If you can't say anything nice...

In a famous 1996 episode of Seinfeld, Elaine Benes sneaks a peek at her medical records and notices that she’s been noted as a ‘difficult patient’ for a minor incident that happened several years before. In an effort to find a new doctor, she learns that her medical history travels to her new physician, and the bad reference follows her wherever she goes. Kramer makes a bungled attempt attempting to retrieve the chart by playing a Belgian physician, and is not only removed from the clinic, but creates a bad reference of his own. 

The irony of the story is that in attempting to prove that she was not a ‘difficult patient,’ Elaine becomes exactly what she feared being labeled as. 

What happens then when a negative job reference is, unfortunately, true? 

Wikimedia Commons\Juhijbljb

Wikimedia Commons\Juhijbljb

In the recent decision of Papp v. Stokes, Adam Papp had worked as an economist for Stokes Economic Consulting until he was terminated almost three years later due to staffing issues. While there was debate over the circumstances of the termination, Papp was terminated without cause, proceeded to collect EI, and sought new employment. He had asked the owner of the company, Dr. Stokes, if he could use his name as a job reference, and Dr. Stokes replied “That is okay.” 

Some months later, Dr. Stokes was telephoned for a job reference. Papp was informed that he was top of the list for a position, and the employer was proceeding to check his references. That’s when the trouble started. 

The Court reproduced the interviewer’s notes from her telephone conversation with Dr. Stokes. The notes outlined that Papp had a “performance and attitude [SIC] issue” and that he “has a chip,” and does not get along well with his coworkers. When asked, Dr. Stokes indicated that they would not have hired Papp again. Papp then was informed that he lost the job due to the negative reference. 

Papp sued for wrongful dismissal, but also claimed $500,000 for defamation, $200,000 for punitive, exemplary, and aggravated damages (usually only awarded in the most extreme circumstances), and an additional $30,000 for mental suffering.

The problem is – all evidence pointed to Dr. Stokes comments being…well…accurate. Papp’s former co-workers testified that while Papp was good at his job technically, he was difficult to work with, and that he was argumentative and a rather abrasive personality. Papp had actually asked another co-worker for a reference, who did not respond because he felt he could not give a positive one. Papp was never formally disciplined for his conduct; but by all accounts he wasn’t a great colleague. 

Before Dr. Stokes gave the reference, he had spoken with Papp’s former colleagues (after agreeing to provide a reference), who told him of Papp’s strong technical abilities but poor performance in the workplace. Dr. Stokes had not given a reference in a long time, and was expecting to have a conversation about Papp’s work abilities, not his performance style. He denied some of the notes that the interviewer had taken, but moreover he denied that he had any intention to give Papp a bad reference, or to harm his job prospects. 

For a defamation claim to succeed, the claim must meet three criteria: the words must lower the plaintiff’s reputation in the eyes of a reasonable person, the words have to refer to the plaintiff, and they have to be published or communicated to a third party. There is no requirement that the defendant intended to do harm, or was even careless. The three criteria must be plainly met, and in this case the Court found that yes, Dr. Stokes reference was defamatory. 

However, there are two defences that can be used against a defamation claim. One is justification, which is that what was said was true. The other is privilege, which can apply to reference letters in a form of “qualified privilege,” which can be defeated if it’s proven that the defendant acted with malice. In other words, if the reference was intentionally spiteful, a defence saying it was privileged content may not hold up. 

In this case though, the Court found that, on a balance of probabilities, what Dr. Stokes told the interviewer was substantially true. While Papp tried to have the testimony of the witnesses overturned because of their close ties to Dr. Stokes (it was largely a family business), the Court found that the witnesses were credible, and that Papp was essentially a lousy team player. Dr. Stokes had not acted maliciously, and genuinely believed what he told the interviewer to be true. While the employer owed Papp some money for reasonable notice, the other claims were denied. 

This case is an interesting one. It is, of course, rare that a former employee would promote a reference without first knowing, or at least assuming, that the reference would be a positive one. Papp likely assumed that he would be in good hands with a reference from Dr. Stokes, and unfortunately it turned out to be a costly mistake. 

For employers, references can be tricky. Some months ago I wrote in a previous blog about when letters should be given and what an employer’s responsibility may be in this situation. While those ‘tombstone’ letters can be incredibly frustrating for employees, they may be the safer route to go in situations where a full reference would otherwise paint a negative picture. A referee who stays tight-lipped can often paint just as full a picture with what they’re not saying. Alternatively, if a former employee was so terrible that a new employer deserves fair warning, employers would be wise to seek legal advice before saying anything defamatory in a reference check. 

For employees, it is obviously beneficial to have a sense of what a referee will say ahead of time. The employee above was obviously caught completely unaware by the negative reference; otherwise he would not have put such an opportunity at risk. A written reference may be a more comfortable way to go, and may help ensure that verbal references are in line with the tone of the letter. For terminated employees, we fight for a positive letter of reference in a form that the employee is agreeable to, and a guarantee that any verbal references will be equally as positive. It may seem like a small token, but these references can go a long way towards getting a new job, or, in this case, towards losing one. 

If you are an employer trying to figure out how to handle a termination, or an employee seeking a reference letter as part of your termination package, we can help. Contact us today to set up a free consultation. 

The bottom line is that it never pays to be a difficult patient, and if you are one, know that it may well follow you on your chart. 

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