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Tread carefully when considering a character reference

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Out of the blue you get a call from an organization asking you for a character reference of a previous employee. Your path with this employee did not part on the best of terms, and he did not even have the decency to ask you if you would be prepared to provide a character reference, so you decide to sabotage his chances of being appointed. A month later, the incident long forgotten, you are cited as the defendant in a defamation case and sued for damages by this previous employee. What does our law say in respect of the employer being asked for a character reference and the employee who received a false character reference from an employer?

Our law does not place an obligation on any employer to provide a character reference for an employee when their employment relationship has ended but likewise it also does not prohibit an employer form providing such a character reference. It is more important that the organization requiring the character references ensure that it has obtained the necessary consent of the job applicant to do so.

If an organization chooses to provide character references for previous employees, it is advisable that a proper policy be implemented by the organisation advising staff as to who are entitled to provide character references, how to deal with character references and which information should generally be provided or avoided when providing a character reference. This will ensure consistency in the provision of these references and avoid references which are falsely positive or negative about an employee. Additionally, if an organisation’s policy is to not provide character references, then this should also form part of the policy of the organisation.

The Basic Conditions of Employment Act (“BCEA”) does however place an obligation on an employer to on termination of employment, provide an employee with a Certificate of Service. Such a Certificate of Service should contain the following information:

  • The employee's full name
  • The name and address of the employer
  • A description of any council or sectoral employment standard by which the employer's business is covered
  • The date of commencement and date of termination of employment
  • The title of the job or a brief description of the work for which the employee was employed at date of termination
  • The remuneration at date of termination
  • If the employee so requests, the reason for termination of employment

It was found in Van Niekerk v Minister of Labour & Others (1996) 17 ILJ 525 (C) that an individual has the right to a professional reputation and fair procedures are required for any decision affecting the individual.

Should a person fall victim to a false character reference by a previous employer, the following remedies are available:

Firstly, if the person feels that the false character reference provided by the previous employer resulted in him not being offered the job, he can sue the previous employer for loss of income. In claiming loss of income the person will have to prove that his application for the post was refused as a direct result of the defamatory statement.

Secondly, the person can also claim damages for defamation of their character. In Foodworld Stores Distribution Centre (Pty) Ltd and Others v Allie (2002) 3 ALL SA 200 (C) it was found that to prove a defamation claim the person would have to prove the following:

  1. That the employer disclosed the defamatory words to a third party;
  2. That an ordinary reasonable person would objectively be of the view that the person’s good name had been harmed;  and
  3. That there was a deliberate intention to cause such harm.

If a person has suffered as a result of a false character reference, it is advised that legal advice be obtained to provide advice as to the merits in pursuing a civil claim against your previous employer on one or both of the above grounds.

Contributed by Phatshoane Henney inc. (PHi) Author Leah Molatseli

T: +27 51 4004191; F: 27 086 5052513

Phatshoane Henney inc. (PHi) is a Bloemfontein-based specialist law firm and founder member of the Phatshoane Henney Group of Associated Firms. The Phatshoane Henney name has become synonymous with personal and professional services of uncompromising quality, with clients able to draw on a broad range of services and a wealth of skills and expertise provided by experienced professionals.

Copyright (c) 2016, the credited author
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