fbpx

A Bad Reference or Defamation?

Can a bad reference amount to defamation? The recent findings in Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haigh & Chapman [2019] NSWDC 98 suggests this is possible.

Facts of the case:

  1. Mr Bowden is a 20-year-old student training in Certificate III for Early Childhood Education and Care at TAFE.
  2. He was employed by Hubba Bubba Child Care as part of his course to fulfil professional experience criteria.
  3. Ms Chapman was the director of MSC Holdings Pty Ltd t/as Hubba Bubba Childcare (Hubba Bubba) on Haig.
  4. Ms Chapman had a policy that prohibited her employees from undertaking any babysitting work whilst employed at her childcare centre.
  5. Mr Bowden undertook two babysitting jobs with the parent of a child who had previously sent her children to Hubba Bubba and Ms Chapman learned about the babysitting jobs in a phone conversation.
  6. Ms Chapman had Mr Bowden escorted off the premises as soon as he finished his duties for the day and subsequently Ms Chapman sent an email to 35 parents whose children attended the childcare centre stating that:

Matt – is unfortunately no longer with us due to disciplinary reasons. Whilst being good with the children in general, Matt was not truthful with us regarding his studies and some other issues, and I felt it was better for him to move on and possibly gain a bit more life experience. We wish him well with his future.

Findings:

  1. The Court ruled that an ordinary reasonable reader of the email sent by Ms Chapman would find its content defamatory.
  2. The test applied by the Court was to consider whether an ordinary reasonable reader readings the words in the context of the email would form the impression that was damaging to Mr Bowden’s reputation.
  3. The Court ordered $237,970.22 compensation in favour of Mr Bowden against Hubba Bubba and Ms Chapman and took a number of factors into account including the following:
    1. Ms Chapman’s failure to offer an apology or mitigate the injury to Mr Bowden;
    2. The young age of Mr Bowden and the and the impact on his mental well-being, studies and the reputation; and
    3. The locality of the recipients of the email who would have been important to Mr Bowden’s career.

Implications of the findings:

  1. The decision is relevant to employers being asked to provide a reference to a former employee or when communicating to the clients regarding the departure of a former employee;
  2. The employer must be careful regarding what is said about former employees and the reasons for their departure; and
  3. It is important to truthful about any communication and care must be taken to not harm the reputation of the former employee.

Note: The content of this blog post should not be considered legal advice however, if you would like to speak to someone about how the contents of this post, please contact (03) 7019 9200 or Amy Nhan at amy.nhan@aderolaw.com.au.