Often when an employer and employee (or employer and trade union) resolve a termination case, the terms of settlement will be set out in Minutes of Settlement or some other document. One of the terms of settlement will often involve giving a written letter of reference and the manner in which verbal references will be handled.
From the employee's perspective he or she wants to know that a reference letter (even a generic one) will be provided and that the employer will not provide a negative verbal reference. But how do you do that?
The Ontario Human Rights Tribunal looked at the issue in Monnier v. St. Joseph’s Lifecare Centre. The applicant filed an Application alleging Contravention of Settlement, under the Human Rights Code in which she alleged that the respondents "had breached a term of a settlement of a previous Application filed under s. 34 of the Code. Specifically, the applicant alleged that the respondents had breached the provision concerning the verbal reference."
The Minutes of Settlement that were agreed to provided:
The Employer agrees to provide the Employee with a letter of reference in the form attached hereto as Appendix “A” and to respond to all verbal inquiries in accordance with same. An original signed copy of this letter of reference shall be mailed to the Employee’s home address within two weeks of the date of this settlement.
The letter was attached to the Minutes and agreed to.
The applicant used the letter in her job search. She went for an interview, it apparently went well, and she was told that if her references were fine, she would be offered the job. She was contacted and told that the position would not be offered to her:
The Tribunal discussed what the Minutes of Settlement meant:
The clear language of the term of the Minutes of Settlement was that any verbal inquiries would be “in accordance” with the language of the written reference. The written reference is descriptive of the job duties of the position filled by the applicant, and the nature of the facility at which she formerly worked, but contains no evaluation – positive or negative – of the applicant’s abilities or conduct as an RPN.
While I do not doubt the applicant was sincere in her belief that the words “in accordance” meant that she would receive a positive verbal reference, her understanding of that term is wrong. The term “in accordance” means that the referee was to give a reference that was consistent with the neutral language of the letter of reference. In fact, a positive verbal reference would not be “in accordance” with the letter and theoretically in violation of the language of the agreement.
Having said that, I appreciate that the applicant may never have agreed to this term, or used the letter of reference had she understood what the term meant. It would appear from the two human resources personnel who testified that a standard question asked in this business is whether the referee would re-hire the subject of the reference. The applicant is, therefore, correct when she states that a neutral reference of the sort envisioned by the Minutes of Settlement would be of little assistance or, worse, to her detriment, if used in this type of milieu.
The name, rank, serial number letter of employment with a caveat that all verbal references will be answered "in accordance" with the letter of employment will have limited value to an employee. At the same time, an employer might not be willing to provide a positive reference (verbal or otherwise) in circumstances where it thinks that doing so would be disingenuous.
References are important and sometimes an emotional subject in settlement discussions. They are sometimes tough to deal with in settlements. That said, they are rarely an impediment to getting the deal done.
