Employers are often unsure about how to write an employment reference – what to say, what not to say and what can be said. Employment references play a significant role in the labour market, given the fact that there are currently more prospective job applicants than employment opportunities.
Is an employment reference compulsory?
Section 42 of the Basic Conditions of Employment Act (BCEA) stipulates that on termination of employment an employee is entitled to a certificate of service stating:
- 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 the date of termination.
- The remuneration at the date of termination.
- If the employee so requests, the reason for termination of employment.
The employer is not obliged to provide any additional information for the purposes of an employment reference, beyond of what is stated by the BCEA.
The true purpose of an employment reference
The real and true purpose of an employment reference should be considered and analysed. Prospective employees rely on employment references by previous employers – where does this leave the previous employer? Employment references are important for both parties, the prospective employee as well as the prospective employer. The role of employment references cannot be over amplified. There are currently very limited authority and the practice of employment referencing is largely unregulated and discretionary. The value of employment references is undisputed – it is undoubtedly in the best interest of both parties that the most suitable candidate be employed. Prospective employers rely a great deal on employment references from previous employers. Mistakes in employment selection can be very costly with serious implications for the individual as well as the company. Employers often appoint new employees on a so-called “probationary contract” for a fixed term, with the sole purpose to find out if the new employee will be a good fit and value contributor to the company. This is simply not the solution. Section 198B of the Labour Relations Act (LRA) sets out a non-exhaustive list of 10 justifiable reasons when you can give an employee a fixed term contract.
The purpose of the Probation Period
Despite the employer’s best efforts to conduct a comprehensive and thorough interview process and obtaining employment references, there is no guarantee that the employee will be a suitable candidate for the position. Since the LRA does not make provision to appoint a new employee on a “probationary contract”, the employee will be appointed as a permanent employee, subject to a probation period. The probation period is also not an instant solution to terminate the relationship as soon as the probation period has lapsed.
The Code of Good Practice, Schedule 8 of the LRA stipulates that a Poor Work Performance procedure must be followed during the probation period. The probationary period is attached to a permanent appointment and the same principles with regards to dismissal is applicable, notwithstanding the probation period.
Item 8 of Schedule 8 in the LRA clearly stipulate the Poor Work Performance procedure. It will amount to an unfair dismissal if an employer dismisses an employee during the probation period, based on unsatisfactory performance. It is therefore important to follow the correct process before dismissing an employee, based on unsatisfactory work performance.
The probation period should not be used for purposes not contemplated by the Code of Good Practice to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees is not consistent with the purpose of probation and constitutes an unfair labour practice.
What should an employment reference contain?
The purpose of this article is not to address potential defamation claims and damages an employee may suffer because of an unfavourable employment reference. Since there is currently very limited authority on the contents of employment references, it is up to the employers to use their discretion when providing an employment reference. Employment references must be reliable, and therefore not inaccurate or an unsubstantiated subjective opinion about the employee. The purpose of an employment reference is to ensure that the appointed candidate possesses the required skill and competencies. The reference required by the previous employer should therefore not contain more information than what is necessary for the prospective employer to make an informed decision. By providing as little information as possible or making use of extensive qualifying statements will eventually render the employment reference meaningless.
When asked to provide an employment reference, one should not use the opportunity to disclose all the employee’s shortcomings and wrongdoings. Employers should instead ensure that they provide meaningful, truthful and relevant information.
Employers should not be discouraged to provide employment references. Employers and employees are role players to a very hostile and challenging labour market. Keep employment references factual and objective, treat all employees equally and consistently and avoid comments that may be construed as discriminatory.
ABOUT THE AUTHOR:
Nadia Brits obtained her BCom Law and LLB degrees from the University of Pretoria in 2007 and 2009 respectively. She completed her articles at the Legal Aid Board and joined the Cape Town SEESA Labour office in March 2014 as a legal advisor.