You’ve been asked by a former employee to provide a reference. Should you always tell the complete truth even if it’s not favourable and may cost them the position? What if you applied for a job but didn’t get it due to a less-than-glowing referral from a former employer or supervisor? What can and can’t you say when you take on the role of referee?
Honesty is key
Peter Gibson, the General Manager of Shine Lawyers in Queensland, says that honesty is the best policy. In an article for InTheBlack he puts it concisely: “Be confident about telling the truth or don’t be a referee”. 1
At the very least, giving a dishonest reference can damage your professional reputation. Being honest is in the candidate’s best interests too. According to Gibson, some candidates who have suffered life-changing injuries will try to conceal those injuries in order to gain a stronger chance of getting back into the workforce. However, if employers don’t know the truth about a person’s capabilities they can’t put the necessary precautions in place to keep them from being injured at work. This can have serious consequences for the business. By neglecting to mention this crucial information when providing a reference, you’re guilty of lying by omission.
However, mentioning medical history that doesn’t affect employment could potentially breach Australian privacy laws.2
What you can and can’t say?
If you’re providing a reference and what you say is untrue and causes a loss for the employee, it may be considered defamatory.3
According to Fair Work Australia, providing information to a potential employer that relates directly to the employment relationship doesn’t breach Commonwealth privacy laws. For more information about this, you can contact the Office of the Australian Information Commissioner: https://www.oaic.gov.au.4
Can you sue someone for giving you a bad reference?
If you sue an employer for giving you a bad reference, it’s up to you to prove that it was motivated by malice. And since people’s motivations can be mixed, you have to prove malice was the dominant motivator. This makes it very challenging to sue an employer for providing a bad reference.
If you’re the one writing the reference, the takeaway is that it pays to be honest. If you tell the truth and you’re not motivated by malice you should be able to speak freely.
Shine Lawyers are experts in employment law. For disputes with your employer, contact our employment law services team: https://www.shine.com.au/service/employment-law.
Written by Shine Lawyers on December 4, 2018. Last modified: December 4, 2018.