An employee has left your organization. What can you say?
The BC Supreme Court recently considered this issue in
Batyka v. Barber, 2015 BCSC 63. In this case, the Court granted
an ex-employee's defamation claim against the employer's
sole shareholder and a former coworker for making false statements
to clients and other third parties about the ex-employee, including
about the ex-employee's departure. These statements included
that the ex-employee had stolen from the company, engaged in
"unscrupulous business practices", and got fired. In
reality, the departure came as the result of a voluntary
resignation stemming from a disagreement between the ex-employee
and the sole shareholder.
The Court awarded the ex-employee $15,000 from each defamer.
While this case presents a somewhat extreme example of departure
communications gone wrong, the case nevertheless provides employers
with a useful reminder on what can be said when an employee leaves
So, what can you say?
Best practices dictate the following:
Be truthful and be restricted
in your audience— Only those employees of your
organization who need to know the reasons for termination as part
of their employment should be advised of these reasons to ensure
employee privacy. Other employees and interested third parties
(including clients) need only reasonably be told that the employee
is no longer with the organization and who they can direct their
work or any questions to.
Be clear with your
audience— If certain information is intended for a
limited group of people or is part of a confidential process, then
communicate this message to your audience.
Be cautious before implying
that an employee was dismissed for cause— The
majority of cases involving defamation by an employer involve an
employer who has alleged but not demonstrated cause for
Be open to a mutually
acceptable message with the ex-employee— Wherever
possible, come to an agreement with the ex-employee on a departure
communication. Even in contentious situations, an agreement can
often be reached about the employee taking early retirement,
pursuing other opportunities, or simply that the employee is no
longer with the company. Stick with this agreed upon messaging and
receive consent from the ex-employee before providing any
Be clear on who can speak to
an employee's departure— Only employees within
your organization who are authorized to report on an employee's
departure should communicate that departure to others. An employer
could be liable in connection with that authorized act of its
employees, and every publisher of a defamatory statement is
personally liable to the plaintiff with each publication as a
separate cause of action.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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