Chilwin Cheng

Recently, someone asked me whether they could sue their employer after they were dismissed and the employer provided them with a good reference on LinkedIn.  The short answer is: not really. But, like all things legal, it depends.  Here are two common scenarios:

Employer dismisses employee without cause, but provides a good reference

Any employer can dismiss an employee, without cause, as long as they ensure that the employee receives proper notice ahead of time that the employee’s employment will end.  The employer can choose to require the employee to work out the rest of his or her employment; or, the employer can choose to pay out the employee’s remaining employment salary and benefit entitlement.    Either way, the employer is not providing any reason for the termination and is not required to provide one.  So, providing a good reference on LinkedIn does not enable the employee to somehow claim extra damages against the employer.

Employer dismisses employee with cause, without notice, but provides a good reference

This is a very unusual situation.  But, I am told that it happens.  This is a dangerous situation for the employer to be in.  By dismissing the employee without giving him or her notice or some severance package, the employer acts as if it had a good reason to dismiss an employee without providing proper notice.  These situations are extremely rare.  Situations that would justify this include theft, fraud, significant insubordination, and other behaviour that damage the trust between employer and employee.  A simple mistake on the job would not normally enable the employer to terminate an employee with cause and without notice.  Employer can choose to make this decision; however, if they go on to provide a supportive reference to the employee on LinkedIn, then the employer can expect the employee to argue something like the following:

·      my employer’s reference demonstrates that I was doing a good job;

·      my employer does not, and did not, have good cause to dismiss me;

·      if my employer wanted to dismiss me, then they should have given me notice;

·      I didn’t get notice and so I can sue them for wrongful dismissal

It’s just inconsistent for an employer to dismiss an employee for cause (without notice) and then go on to say how great of an employee he or she was.  Furthermore, employers expose themselves to potential (rare, but possible) litigation if their reference and endorsement turns out to be wildly false and misleading.

Recommendation

So, in short, if you’re an employee, appreciate the LinkedIn endorsements whenever and however you get them, even if they’re from an employer who just fired you.  Employers – be truthful and consistent about why and how you dismiss your employees, including how you communicate that event to the public.

About the Author:
Chilwin Cheng is a lawyer in private practice and co-founder of www.FairDismissal.com, helping employers understand and calculate their dismissal obligations with value-priced online solutions.