It is quite common for  South African employers to call the employment references of job applicants prior to making them an offer of employment. The aim of an employment reference check is:

• The confirm certain key pieces of information regarding the applicant including his/her previous employer, duration of employment, past role title, and more;
• To ascertain that the applicant would indeed be capable of performing the duties and responsibilities of the new role.

It is a practice that is still highly prevalent in South Africa, despite the fact that it has been proven a poor predictor of future performance.

There is a common perception that employers are not allowed to provide negative employment references. It is believed that an employer cannot provide anything worse than a neutral reference or simple confirmation of employment.

We thought to take a quick look at this practice in South Africa, what the law says, and what pitfalls there might be.

What you must do: The Law

With regards to references, the Basic Conditions of Employment Act only requires employers to provide past employees with a Certificate of Service. The certificate must contain the following information:

• the employee’s full name;
• the name and address of the employer;
• a description of any council or sectoral employment standard by which the employer’s business is covered;
• the date of commencement and date of termination of employment;
• the title of the job or a brief description of the work for which the employee was employed at date of termination;
• the remuneration at date of termination; and
• if the employee so requests, the reason for termination of employment.

Here is a Sample Certificate of Service if you might need one.

• Download PDF Format
• Download Word Format

Neither the Basic Conditions of Employment Act, Labour Relations Act, or the Employment Equity Act in South Africa specifically provides instructions or guidelines when obtaining or providing negative employment references. However, this does not mean that there are no rules, or that an employer can do what he/she wants to.

What you could do if you want to

The reason that people believe they are not permitted to provide negative employment references is unknown. It could be that the general populace feels that it would be somehow unfair, or perhaps it is just the general pro-employee nature of the South African labour market.

Regardless of the reason, an employers can certainly provide a negative employment references for past employees, but with the following important caveat:

• The information provided must be true and accurate.
• The information must be relevant to it’s purpose – i.e. it must relate to the person’s job performance, disciplinary record or any other factors related to his/her work performance that might.
• The information must not impede the employee’s constitutional right to privacy – i.e. personal information that is not relevant to work performance may not be shared.

Therefore, as long as the employer is acting in good faith, and providing factual and accurate information about the employee, he/she is permitted to provide a negative reference.

What you cannot do

A past employer may not defame, slander or smear an ex-employee. In the event that the ex-employer (or any person for that matter) can be proven to have done so, he/she may be sued for libel and could be liable for damages. It is important to note that unfavourable information does not amount to libel, only untrue information.

Despite the emotions that can sometime be involved in a resignation, or termination of employment, it is important the the employer remains objective and unemotional during an employment reference so to ensure that he/she provides facts and information that are accurate and relevant.

Summary

For Employees: The belief that employers cannot provide a negative employment references is a myth. For this reason, it is important to ensure that you do not burn bridges at past employers, and that you do your best to leave with your relationships in good shape.

For Employers: Having an efficient labour market is an important part of building an industry and economy. Disseminating accurate information about the work performance of ex-employees plays a very important role in that. For this reason, we would like to encourage all employers to provide accurate and factual references when called upon to do so, even if they are negative. This will ensure that high-performing employees raise to the top, and low-performing or ill-disciplined employees are incentivised to act professionally and improve themselves. However, be balanced in your feedback, one mistake or fight does not nullify years of good work.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.