VIC Defamation - Unsolicited Call from Ex-employer to Prospective Employer?

[MLJ]

Hi. Can anyone provide advice:
An ex-employer learned the name of a prospective employer that the employee had been interviewed by. The ex-employer made an unsolicited phone call to the Managing Director of the prospective employer to tell him not to employe this person and made various negative statements about the person. The prospective employer was so shocked receiving this call and told the ex-employer that the call was totally inappropriate and unprofessional. The ex-employee learnt about this during the 2nd interview with the prospective employer who was concerned about the situation and suggested the candidate seek legal advice. Has the ex-employer defamed the character of his ex-employee (defamation)? Does anyone know of a legal case I could read on a similar topic? At the time of writing, the prospective employer has not advised the candidate whether they were successful or not.

 

[Rod]

Did the ex-employer say anything that was untrue?

 

[MLJ]

Did the ex-employer say anything that was untrue?

Yes he did including that the employee was a poor performer which is not truthful.
Relationship broke down between parties after a few events including when employee refused to state to a commercial customer that company's products were manufactured in Australia when in fact manufactured in Malaysia and blaming employee for loss of customer. Ex employer planned to place Aust made labels on the product. Plus wanted employee to create false documentation on a subordinate's employment file after he was terminated unfairly and state to FWA that required warnings were given when that were not.

 

[Rod]

Then there is a case for defamation. I've not dealt with these types of cases so can't advise on how to proceed with a defamation case.

 

[Rod]

PS: This not employment law related. Read this: https://www.lawanswers.com.au/threads/defamation-comments-in-email-to-body-corporate.1267/#post-4645

The actual law is the defamation act 2005 found here:

http://www.austlii.edu.au/au/legis/vic/consol_act/da200599/

 

[Sarah J]

I would speak with a lawyer before initiating any defamation action.

Defamation law (i.e. what constitutes defamation) is quite complicated and there is a lot of case law establishing it. Part of the issue is what was the statement uttered, exactly? Because saying "I believe, from my experience, that the employee is a bad performer in x" would not be defamatory because it is an assessment (i.e. an opinion reasonably formed). If it was "employee x is a bad performer and is lazy" then this is stating a fact and may give rise to defamation. However, the statement must not be reasonably based or justified. Hence, if the employer has reasons to make this statement and such reasons are strong, this may not be a good defamation case. Also, the court will take into account the purpose of an employer reference, the concern of having employer assessments easily fall into defamation and the proportionality of the action (i.e. whether your loss is proportional to taking the action to court). Therefore, if you have lost one job but have found another job that can replace this lost opportunity, then the damage to you, in the court's eyes, will not be very high and may not justify a defamation action.

In short, speak to a lawyer.