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EMPLOYEES MAY HAVE TELEPHONE CONVERSATIONS RECORDED

The Quebec Court of Appeal[1] recently ruled on a case where a woman suspected that her former employer was harming her by providing poor references about her. In order to confirm her doubts, she asked a friend to call her former employer, pretending to be a potential employer. The friend was to ask the employer for references and record the conversation without the employer's knowledge. The conversation confirmed the woman's suspicions and she decided to sue her former employer for damages.

At trial, the employer's attorney successfully objected to the recording of the said telephone conversation being filed as evidence on the grounds that the evidence had been obtained in bad faith. The Court of Appeal, however, reversed the decision. Judging that the former employee's stratagem did not violate any statutory provisions, that the employee had not been shown to have violated Charter rights and that she had not in any way intimidated her former employer, the Court of Appeal declared the audio recording admissible. The Court was of the opinion that the evidence was relevant and that disallowing it would bring the administration of justice into disrepute, given that the search for the truth remains the basic objective of a civil trial. In other words, allowing a party to hide evidence showing that a wrongful act has been committed would prevent the proper functioning of the justice system. The Court thus returned the case to the trial court to rule on the case in light of the recording of the telephone conversation.

Employers are often asked to provide references on former employees. What can you do to avoid being sued? What are the rules in such a case?

EMPLOYERS CAN REFUSE TO GIVE REFERENCES

Employers have no legal obligation to provide references on a former employee, except under very specific circumstances. For example, a court could order an employer to provide a letter of recommendation to an employee who has been unjustly dismissed.[2] An employer could also be compelled to provide references when it is customary for the company to provide such information to potential employers.

However, employers are obliged at all times to provide a certificate of employment at a former employee's request pursuant to Article 2096 of the Civil Code of Québec and Section 84 of the Act respecting labour standards. The certificate must state only the nature and duration of the employment, the dates on which the employment began and ended, and the employer's name and address. It does not provide any information on the quality of the work or the employee's conduct.

RULES TO FOLLOW WHEN AN EMPLOYER DECIDES TO PROVIDE REFERENCES

Employee's consent

When an employer agrees to provide references, he first has to obtain the manifest, free and enlightened consent of the employee in question, as providing references involves disclosing personal information to third parties. Such consent may be obtained directly from the employee or given to the potential employer. To avoid any risk of legal action, the consent should be in writing and signed by the employee.

Discrimination and invasion of privacy

Obtaining the employee's consent does not authorize the company to disclose any kind of information about the employee. The information disclosed must be non-discriminatory. For example, an employer cannot provide information that the employee would not be obliged to disclose during an employment interview, such as his sexual orientation, age, ethnic origin, religion or marital status.

The employer also has to make sure not to disclose information about the employee's private life. The information provided must therefore be directly related to the employee's work performance.

Defamation and injury to reputation

The information disclosed must be true, complete and reflect reality. The employer therefore has to avoid information based on hearsay or mere impressions. Obviously, an employer who gives references should also refrain from making defamatory statements, tarnishing the former employee's reputation or trying to harm him by ridiculing or humiliating him.

CONCLUSION

Employers who violate any of these principles could be sued by a former employee. In order to win the case, the former employee will have to establish a causal relationship between the poor references and potential employers' refusal to hire him.

In the past, such evidence was difficult to establish, given that it was rarely possible for an employee to obtain the information disclosed about him and to use it as evidence. However, this Court of Appeal decision will allow employees to obtain such evidence much more easily by recording a conversation with the former employer.

A new employer could also institute legal proceedings if he has hired an applicant based on false references.

In short, to avoid such proceedings, opt for one of the following two scenarios:

1-         establish a policy that the employer does not provide any references on former employees;

or

2-         provide references after obtaining the former employee's consent and making sure that the information provided is fair, true, non-discriminatory, non-defamatory and limited to the facts directly related to the employee's work performance.

Geneviève de la Durantaye

[1].    Bellefeuille c. Morisset, D.T.E. 2007-394 (C.A.)

[2]     Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2007 - All Rights Reserved

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