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Think twice before you write a reference letter

Posted: April 1, 2019 by Carole McAfee Wallace

A positive reference letter can seem like a welcome favor for a long-term employee, but a recent court case illustrates why fleet managers may want to think twice before writing such a document.

It all began with a blocked route.

Michel Arel, a truck driver with Transport Dessaults, told a client that a load wouldn’t be delivered because of an illegally parked vehicle. His customer clearly wasn’t happy. They called the fleet, and the fleet’s president called Arel.

That discussion became heated, and the driver hung up.

When Arel reported to work the next day, he learned that he wasn’t assigned a load. A supervisor called him into a private room and handed him the notice of a four-day suspension that had already been placed in the driver’s mail slot.

Arel lost it, pushed his supervisor and left. A video camera caught it all. The supervisor then called police to file an assault report, and Transport Dessaults terminated the driver’s employment. After he called the president to apologize and express regret, the supervisor withdrew the police complaint.

A week later, Transport Dessaults even provided Arel with a letter of reference confirming his position, 10 years of service, and stating that he “proved to be a good employee who performed his tasks in a completely professional manner” and would be “a great asset” to a future employer.

The driver found a new job within a few weeks … and then launched his unjust dismissal application.

Under the Canada Labour Code, a non-managerial employee with at least 12 months of service can only be dismissed by a federally regulated employer if there is a bona fide lack of work, a position is eliminated, or there is just cause for termination.

You would think that forcefully shoving your superior after angrily tearing up a suspension notice would constitute just cause, but this wasn’t the case.

The adjudicator found that Arel was guilty of gross misconduct when he pushed his supervisor, but the employer’s favorable reference letter issued so closely after that event meant the dismissal couldn’t be upheld.

The adjudicator awarded severance pay but did not order Arel’s reinstatement, given the breakdown in the employment relationship. Transport Dessaults filed an application with the federal court for a judicial review, arguing that the fleet’s actions after Arel’s termination were irrelevant, and that the finding of gross misconduct supported just cause in the dismissal.

The federal court decided it had to consider a broader context to determine just cause, and would look at Arel’s employment history and consider whether trust was permanently severed by the actions. The positive letter of reference led to the finding that the immediate dismissal wasn’t justified, and the order to pay severance was upheld.

Transport Dessaults was likely trying to help its former employee find a new job, but this affected its ability to argue just cause. It’s why many employers now have a policy against providing a letter of reference, or limit themselves to providing a confirmation letter that sets out the dates of employment, positions held, duties and responsibilities.

Terminated employees have a duty to mitigate damages by actively seeking new work, and a positive reference letter is an important tool in such a search. If the employee finds new work right away, this could remove grounds for a wrongful dismissal claim or dramatically reduce the amount to which they would be entitled.

An employer is not legally obligated to provide a reference letter, though.

Employers need to think carefully before issuing such a document. They may be sued by a future employer who relies on a glowing reference that turns out to be untrue. The former employees themselves might sue because of an honest reference that’s deemed to interfere with their ability to find new work.

Sure, employers can mount a defence if they honestly believe the content in the reference letter, but that may be little comfort when they’re being sued.

  • Carole McAfee Wallace is counsel at Fernandes Hearn LLP, and can be reached at 416-203-9551. This column is intended for information purposes only and does not constitute legal advice.
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