No law in our legal system obliges an employer to provide character evidence for a former employee when the employment relationship ends, nor does any law preclude an employer from providing reference comments to a prospective employer who enquires. Nothing thus precludes a former employer from making negative comments provided it is true, accurate and relevant.
In Van Niekerk v Minister of Labour and others (1996) 17 ILJ 525 (C), the court held that an individual has the right to a professional reputation. Held further that if an employer deliberately provides a damaging or character reference without foundation about a former employee, they are exposing themselves to liability in the form of damages based on either loss of income or defamation.
Regarding Section 14 of the Constitution of the Republic of South Africa and Section 42 of the Basic Conditions of Employment Act, no guidance is given regarding when/how former employers are limited in providing negative employee references. The only limitation(s) is that you cannot make an untruthful or defamatory comment, while care should be had not to disclose any personal information as contained in POPIA.
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