It’s probably safe for this writer to assume, that all readers of this piece have applied for a job at some stage in their lives, and during the job seeking process, would have also been required to provide the names of referees who can vouch for their professional abilities. The nomination of references by a job seeker, and the verification of that person’s capabilities in performing the role, is just one of those routines that we all must partake in when applying for a job. Furthermore, when nominating a person to be our referee, we’ll probably choose someone who will give us a glowing recommendation. However, what happens if our referee gives a prospective employer a negative reference? Is it actually against the law for someone to provide a bad reference to a potential employer, and as a consequence, potentially jeopardising our chance of landing the job? Well, the position in Australia is rather complex to put it mildly.
Does an employer have to provide a reference if you ask for one?
Before exploring the legalities in regards to employment references, we should perhaps begin with the more basic question, on whether or not an employer must provide an employee with a reference if one is requested. And the answer? Well, no, there is no general duty for an employer to provide an employee with a reference.
That was the simple bit in regards to this area of law.
Is a referee allowed to give a negative employment reference?
Now, the question in regards to whether or not it’s against the law for an employer to provide a bad reference, is the more important inquiry and the answer is quite fascinating.
First, if an employer who agrees to be a reference provides information to a prospective employer that is defamatory, then the employer may be exposed to potential liability.
Although, the uniform Defamation Acts, may provide an employer some defence in terms of qualified privilege, which can protect the employer in the event that the information provided, or the impression given, is substantially true. Furthermore, it should also be noted, that this defence is available if the information was also considered as reasonable under the circumstances.
In determining ‘reasonableness’, the courts will look into a number of the surrounding facts of the situation, when making a decision on whether or not a negative reference by an employer is defamatory. However, if an employee can prove that the employer provided a negative reference maliciously, then the defence is generally no longer available to the employer.
On the other hand, it is however important to also be mindful of the fact that an action of defamation can be restrictive, and not every adverse statement – even if the statement was false – can be considered defamatory.
If you are experiencing any employment related legal issue, please seek the help of a lawyer who is able to assist you with any problems that you may be facing.
