When employers and their former employees are trying to settle disputed issues arising out of a termination of employment, there are many monetary factors to address.
Perhaps surprisingly, it isn’t always the money which is the stumbling block to reaching a settlement.
A very important aspect to any part of a settlement for a departing employee is receiving a reference letter.
Often, the employee will insist on getting a reference letter and the employer will be reluctant to provide it. The reference letter is, in some ways, a comparatively small aspect of such settlements.
But it has large emotional and practical implications for the departing employee and can be the point on which a prospective settlement lives or dies.
For the employee, departing from a job without a reference letter leaves what I call a “black hole” in his or her employment history.
This can have a crippling effect on the individual’s job search (especially when the employment was quite lengthy).
The individual will ask himself or herself, “How do I explain to potential employers that I don’t have a reference letter?” and “Am I supposed to pretend that job never happened?”
On the former employer’s part, it may be reluctant to provide a reference letter to an employee it chose to terminate.
This reluctance can be based on an exaggerated fear of the legal implications of issuing a complimentary letter to a less-than-satisfactory former employee.
The employer will ask, “How do I find something positive to say about this person?” and “What happens if another employer relies on my letter but things turn out badly?”
Despite the sometimes conflicting desires of employer and departing employee, the matter can usually be resolved.
I can’t recall a single instance in my own career in which we could not ultimately get over this hurdle. But, it hasn’t always been easy.
In my view (other than in truly exceptional instances) the employer should, and can, provide a reference letter to a departing employee.
Whether a purely objective, “just the facts,” sort of letter or one containing subjective assessments of the employee’s performance and conduct, a letter can almost always be assembled.
But, arriving at mutually-acceptable wording can be a substantial challenge. That is why I routinely recommend (regardless of whether I am representing the employer or the employee) that the departing employee prepare the first draft of the reference letter.
This may sound counter-intuitive. After all, it’s the employer’s task to write the reference letter, right?
I’ve seen results over a lengthy period of time consistently proving the effectiveness of this approach.
My observation has been that employees tend not to over-inflate their accomplishments and that employers are relieved by how restrained the employee has been.
My experience has been that when the employer writes the first draft, the employee tends to be dissatisfied with the result (perhaps because he or she reads an unintended ill will into the employer’s chosen words).
It tends to lead to a lot of “Why did you say that?”; “Why didn’t you mention this?”; “I don’t like the tone of that comment” sorts of reactions.
Rather than the employer trying to guess what the employee will want to see in the letter, and wrestling with its own reluctance to construct some positive commentary, the employee can get right to the heart of the matter by writing the first draft.
Once that first version has been established, my experience has been that only minor tinkering tends to be required to get it in a condition that is acceptable to both parties.
In this way, a potentially emotional and explosive aspect of settlement discussions can be dealt with relatively smoothly and easily.
Of course, employers must ensure that what they are writing about an employee is factually accurate. The letter won’t ever provide a complete record of the employment relationship, but that’s never been the purpose of the reference letter.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.
www.smithsonlaw.ca
