September 2015
“The Reference” sounds like it could be the title of a Grisham novel. I don’t promise the same suspense or entertainment! But this article is an important read if you are at all confused about giving a reference for a current or past employee.

References are frequently misused and misunderstood, and the inspiration for this article has come from two people who have said to me in the last month, “But I thought it was illegal to give a bad reference”. This is not true, but there are a few caveats, so let’s separate the fact from the fiction…

Do you have to give a reference?
Nothing in law obligates an employer to write a reference for a departing employee. Legally there is no requirement on an employer to provide a reference for an employee, unless the employer has specifically agreed to it, for example, in the employment agreement or as part of a settlement following a personal grievance for dismissal.

Certificate of employment
Some employers avoid giving references, and prefer to only provide a certificate of employment (the basic facts), because they are worried about either:
– a claim of defamation (by the employee) if they say anything negative
– a claim of negligence (by the new employer) if the employee doesn’t live up to any positive comments made.
Certificates of employment are a good alternative to giving a reference, if you do not wish to provide a reference.

Basic rules
– Never give a reference unless your employee or former employee has given YOU their permission to do one. If you give a reference without their permission, you are opening yourself up to breaches under the Privacy Act and potentially opening yourself up for a defamation case, a personal grievance or even a human rights claim.
– If you don’t want to give a reference, you can decline. Simply say, “Sorry, I’m not in a position to give a reference”.
– Consider whether you are the right person to be giving a reference for the past employee. It comes down to relevance – things like whether the person reported to you and the length of time since they worked for you. If it was 10 years ago, then you have to question the relevance, when a lot may have happened in the life of that employee since.
– For some companies, it might be company policy to not give references.
– If you are phoned for a reference, don’t feel obligated to give the reference on the spot. Ask the person to call back at a specific time. This gives you time to compose what you want to say.
– Be honest, but considered. You can be constructive and honest without defaming, by saying something like, “In my opinion, one area for development is his team communication skills”.
– Any reference or certificate of employment should be accurate – whether negative or positive.
– If you are approached to do a reference and you don’t want to, let the subject of the reference know that you are no longer able to be a referee for them.

The bottom line
It is still appropriate for a good employer to give references. But there is no obligation. Just make sure that you get your facts straight.

For our next newsletter instalment, still on the topic of references, I will talk about running your own reference checks when you are hiring. In the meantime, if you have any questions about references, drop me a line anytime.