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 an organization.
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 termination.
- 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 references; and
- 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.
Save the date & what would you like to hear? We remind you that our annual seminar is coming up on June 5. If there are any particular issues you would like to hear about, please let us know.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.