It's Not Just Off-The-Clock Emails That Can Come Back to Haunt You
By Howard Levitt,
November 09, 2015

Just as your off-duty emails can come back to haunt you, so too can your work-related correspondence, whether that involves expressions of emotional support to a colleague with whom you have developed a close relationship; offering a reference for a report that isn’t quite accurate; or writing a performance review that doesn’t reflect an employees work.

Last week, one of my clients received a demand letter from the counsel of a former employee, who was claiming to have resigned because of a toxic environment. The letter stated that his perspective on some of his interaction was shared by an unnamed witness.

An email search, which I invariably recommend whenever there is a cause termination, revealed that a colleague of the employee had become a cheerleading section for this employee’s alleged plight. This colleague had been providing emotional support as a friend because the employee had become so disconsolate at work (as result of legitimate criticism and reprimands from management).

‎ To buoy his spirits, this colleague carped along with the employee by generally expressing support for his situation. What that colleague never dreamed of is that she would be outed by her friend, who used her sympathetic words against their common employer.

Did the colleague actually mean everything she said? Likely not, and in any case she denies meaning any of it.

This situation also arises in references. Too often, my responding letters citing instances of a former employee’s misconduct, are met with‎ a copy of a reference letter provided by the employee’s manager. The manager is invariably apologetic, noting she was merely attempting to assist a long-service employee in finding work in a difficult market.

But the damage is done. If the matter proceeds to trial, that manager will have to testify under oath, and retract what she stated in her letter, while attempting to convince the court of her sincerity, despite earlier being untruthful.

Employers should ensure no references are sent from anyone other than a designated manager and that that individual first review the employee’s file to ensure any reference reflects both the facts and the employer’s legal position.

However, the absence of a reference to a deserving employee has sometimes been held to be a factor in increasing severance so caution is advised in all respects.

The performance appraisal is similar in frustration for employers. Some managers appear incapable of providing a negative appraisal, however well deserved. These managers, instead provide the majority with “exceeds expectations” and the desultory with “meets expectations.” While an employee’s file is rife with disciplinary letters, the annual appraisal suggests an employee of middling accomplishments and performance.

Again, the answer is to require designated human resources professionals, cognizant of any disciplinary issues, to approve all performance appraisals.

However, if you have decided to dismiss an employee for misconduct or incompetence, ensure you are adjudging them by the same rules that apply for everyone else.

A quick defence to a cause case is for an employee to successfully assert that a co-worker was performing equally deficiently with impunity. ‎If you permit lassitude and insolence in your workplace, you can’t suddenly make it cause for discharge without substantial advance remediation in your workplace culture.

To paraphrase an old arbitration case, you can’t let an employee crawl out on a branch only to saw it off.


This article should not be relied upon as legal advice - the comments may not be applicable to you and may not be up to date. If you have any questions, you should contact a lawyer.

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