liability

Reference Checking Rights

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Is honesty always the best policy? When it comes to providing a negative reference about a former employee, the answer is a cautious “yes.”

As HR practitioners, we have multiple obligations, which includes the professional requirement to act in good faith, with honesty and integrity. Furthermore, we must undertake due diligence to meet numerous legal and organizational conditions in order to ensure regulatory compliance. When all of these factors work in alignment, HR practitioners can be reasonably assured that our professional obligations are being met.

Reference checking, as part of the last stage of a candidate selection process, may sometimes stand as a barrier to meeting these obligations. On the one hand, reference checks provide for honest insights from a third-party perspective into the characteristics of a potential candidate. On the other hand, the reference checking process can turn into a minefield of negative consequences if not managed properly, by both the recruiting employer and the employer providing the reference.

An example of the consequences that can arise from providing a negative reference can be found in the case of Papp v. Stokes et al, 2018 ONSC 1598. This case, summarized here, occurred as a result of a former employer stating to a potential new employer that the candidate they were considering had interpersonal issues with former colleagues. As noted in this additional article, the former employer also stated there was “no way” they would re-hire this person. As a result, the person was not hired, and went on to file a civil suit for defamation against the previous employer, based on the negative reference. As noted in both case summaries, the courts found the former employer was not at fault and dismissed the defamation complaint. The decision by the courts was based on the fact that the former employer had provided a truthful reflection about the person that was not malicious in any way.

While this seems to be a ‘winning’ case from the employer’s perspective, it comes with several resultant cautions. References must be based on a factual representation, and must not veer into personal opinion, or that which may be perceived as a malicious attack. This can be done through written reference letters or online questionnaires that provide neutral job-related information about the candidate. In-person reference checking, however, may be influenced by both tone and subjective perceptions about what is being communicated in relation to a particular candidate. Even though the risk of a lawsuit may be low, no employer wants to find themselves on the receiving end of a claim that may not be defensible, both in evidence and in fact.

What is an HR practitioner to do? Ensure that the evidence and facts reflected in each decision-making step of the employee selection process, including reference checking, is based on due diligence, good faith, honesty, and integrity.

Discussion Questions:

  1. As a job candidate, what steps can you put into place to ensure your references provide accurate information about you to a prospective employer?
  2. From an HR perspective, what types of protocols do you think should be put into place to reduce the risks of negative reference checks?
  3. What will you do when you are asked to provide reference information about a former employee who was a poor performer and had ‘attitude issues’?

Health and Safety Responsibility

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Law and justice of Canada concept with a 3d rendering of a gavel on a wooden desktop and the Canadian flag on background.
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Who is really responsible?

Understanding the complexities of the Canada health and safety (H&S) legal framework is a difficult challenge for any new Human Resources professional.

A brief review on how Health and Safety legislation is structured in Canada may be helpful. All provinces, territories and the Canadian Federal Government have their own Health and Safety laws and structures.

Click here to get a good overview of H&S in Canada.

All Health and Safety legislation is based on common principles which include:

  • Duties and responsibilities of employers, supervisors and workers
  • The three basic health and safety rights; to know, to participate and to refuse unsafe work
  • Enforcement by inspectors which can lead to fines, potential criminal charges and imprisonment.

At its foundation, Health and Safety laws are based on a legal concept called due diligence. The Canadian Centre of Occupational Health and Safety (CCOHS) defines due diligence as:

“Due diligence is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.”

The interesting thing to note is that due diligence can only legally be demonstrated by an employer’s safety actions before a negative safety event, not after! No matter how much an organization improves after an incident, that improvement has no bearing on an organization’s actions (or lack of actions) prior to the negative safety event.

In addition to provincial regulatory legislation, another legal layer has been added through Bill C45 which allows for individuals and employers to be found liable under the criminal code of Canada.

Recently, the tragic death of a young construction worker in Ottawa brings all of these legal concepts into reality.

Click here to read the full story.

It is interesting to note that this particular construction company was investigated by the Ministry of Labour on a very similar issue of falling ice injuring a worker prior to this devastating workplace fatality.

Unfortunately, this is a story that plays out far too often in Canadian workplaces. There are near miss incidents where no one is hurt and the issue is ignored. Provincial inspectors issue orders that do not go far enough. When a worker is killed, more orders are written and maybe, just maybe, the fatality will be investigated under Bill C45.

Clearly, our Health and Safety legal structure is not as effective as it should be. It is definitely time to ensure that responsibility for keeping our fellow human beings are safe, rests with all of us, not just with some of us.

Discussion Question:

  1. Many senior managers and supervisors seem not to understand the complexities of Canada’s H&S legal system. You have been asked by your VP of HR to prepare a ten minute presentation on: your provincial H&S act, due diligence and Bill C45. Include at least one recent current example of where a workplace incident went wrong and its potential impact on the organization and individual management responsibilities.