Employment references can significantly impact a person's career prospects. If a former employer provides a reference that contains false and damaging statements, an individual may consider legal action for defamation. This article outlines the key legal principles in New Zealand relating to defamation in the context of employment references.
What is Defamation?
Defamation is a civil wrong (a tort) that involves publishing a statement that tends to lower the reputation of a person in the estimation of right-thinking members of society generally, or tends to make them shun or avoid that person [Source: Common Law of Defamation in New Zealand]. To succeed in a claim for defamation, a plaintiff (the person bringing the claim) generally needs to prove three elements:
- Defamatory matter: The statement must be capable of being understood as defamatory [Source: Common Law of Defamation in New Zealand]. This means it must harm the plaintiff's reputation.
- Identification: The statement must refer to the plaintiff [Source: Common Law of Defamation in New Zealand].
- Publication: The statement must have been communicated to at least one other person besides the plaintiff [Source: Common Law of Defamation in New Zealand]. In the case of an employment reference, this would typically be a prospective employer.
Employment References and Defamation
While there is generally no legal obligation for an employer to provide a reference in New Zealand, if they choose to do so, they must be careful about the information they provide [Source: Common Law principle]. A reference that contains false, negative statements about a former employee could be considered defamatory. However, employers have potential defences against such claims.
Defences to Defamation
Several defences are available to a person accused of defamation. In the context of employment references, the most relevant defences are:
- Truth (Justification): If the defamatory statement is substantially true, it is an absolute defence to a claim of defamation [Source: Defamation Act 1992, s 8]. This means that if an employer provides accurate, albeit negative, information in a reference, they are unlikely to be successfully sued for defamation.
- Honest Opinion (Fair Comment): A statement of opinion, as opposed to a statement of fact, can be defended if it is genuinely held, based on true facts, and relates to a matter of public interest [Source: Defamation Act 1992, s 9]. In a reference, this might apply to a subjective assessment of an employee's performance if based on factual grounds.
- Qualified Privilege: This is a crucial defence for employers giving references. Qualified privilege applies where the person making the statement has a legal, moral, or social duty to make it, and the person receiving it has a corresponding interest in receiving it [Source: Common Law of Defamation in New Zealand]. Providing an employment reference to a prospective employer is typically considered an occasion of qualified privilege because the former employer has an interest in communicating information, and the prospective employer has an interest in receiving it to make an informed hiring decision.
Defeating Qualified Privilege: Malice
Qualified privilege is not absolute. It can be defeated if the plaintiff can prove that the defamatory statement was made with malice [Source: Common Law of Defamation in New Zealand]. Malice, in this context, refers to an improper motive, such as ill-will, spite, or a reckless disregard for the truth. If an employer knowingly makes a false statement or is indifferent to its truth or falsity when providing a reference, the defence of qualified privilege may fail.
The Role of the Employment Relations Act 2000
The Employment Relations Act 2000 primarily governs the relationship between employers and employees in New Zealand, covering aspects such as good faith, personal grievances, and collective bargaining [Source: Employment Relations Act 2000, s 3]. However, the Act does not directly deal with defamation claims arising from employment references. Defamation is a matter of common law and is primarily governed by the Defamation Act 1992. An individual cannot typically bring a defamation claim as a personal grievance under the Employment Relations Act 2000.
Bringing a Defamation Claim
A defamation claim is a civil action brought in either the District Court or the High Court, depending on the severity of the alleged defamation and the amount of damages sought [Source: District Court Act 2016, s 27; High Court Rules 2016]. The process involves filing a statement of claim, and if successful, a court can award damages to compensate for harm to reputation, hurt feelings, and sometimes economic loss [Source: Defamation Act 1992, s 28].
When to Seek Independent Legal Advice
Individuals who believe they have been defamed by an employment reference, or employers who are concerned about potential defamation claims related to references they have provided, should seek independent legal advice. Community Law Centres across New Zealand provide free legal advice and can offer guidance on initial steps and options.