Summary
You quit your job, or you were fired. You might even have raised a personal grievance for the problems on leaving. Here are some tips to get around the 'spite reference and untruthful gossip' problem.

Take steps to protect your reputation when you left your job on bad terms.
You quit your job, or you were fired. You might even have raised a personal grievance for the problems on leaving. Now you've had the chance to try and find a new job, but it seems like all the doors you thought would be open to you are slamming shut before you've had a chance to check out what's behind them.

Your prospective employer should only be asking about your skills and qualifications, and not requesting or listening to subjective personal opinions or irrelevant personal information about your previous employment. But let's face it, bad bosses just can't help but open their mouth and rubbish you to anyone who will listen.

So could it be that your ex-boss or someone in your workplace is talking about your past employment in places they shouldn't? Are prospective employers being told about your employment problems with your former boss, or that you're a poor performer or a troublemaker?

Here are some tips to get around the 'spite reference and untruthful gossip' problem.

First, remind your former employer of the Privacy Act and it's Principles. Employers are not allowed to simply go out and tell people about you and your employment with them - especially if what they are saying isn't accurate. If your previous employer was a bad one, tell the prospective employer that you had trouble there and that you will want to check any reference information obtained for accuracy before the prospective hirer makes a decision.

Second, check out the employment agreement you had with the previous employer. Did it have a confidentiality clause that included confidentiality of information about co-workers? If so, then it's a safe bet that your co-workers also had that clause. Tell your ex-boss that the requirement to secure your personal information extends to reminding all employees that they are not allowed to go out and talk about your dealings with the company or your personal information either, or it could potentially lead to disciplinary action or action taken by the Privacy Commissioner. Your co-workers should never become involved in your employment disputes in the first place, but if for any reason they do then they should be advised never to repeat what they know.

Third, make sure you take the time to get back in touch with the hirers on the prospective jobs you lost and ask for feedback on your application and reference checking. You could ask them for access to the information they obtained from referees in order to ensure that the information they collected is accurate and up to date. You have a right to ensure the information is correct and not misleading, under the Privacy Act. You should explain ahead of time the reason why you want to be able to check back with the prospective hirer after they have taken the reference - because you are concerned that the information they obtain may not be altogether accurate because you left under a cloud. If a past employer has said that they do not want the reference check information to be given to you, that's a good indication they have probably said something untruthful. In any event, they are not the protected party - you are. It is not their information, it's yours and you are still entitled under the Privacy Act to be able to check it's accuracy. Good bosses will understand the problem. Bosses who don't understand the problem are probably bad bosses anyway so you're better off not getting that job!

Fourth, run some searches on yourself on the internet. Find out who is talking about you on Facebook or other internet forums. If your previous employer or a co-worker is gossiping about you on the internet make sure you get screenshots showing the date/time of their posts. The screenshots may become vital evidence later! Don't forget to ask the website owner to remove the posts.

Below is an example of an email to send out to your employer when you hand in your notice. It's a timely reminder to employers of the potential for trouble if they release information they shouldn't. Feel free to copy/paste it into an email and send it to your former employer once you've left!

Dear ex-boss,

You are reminded at this time of your obligations in relation to Principle 5 of the Privacy Act regarding the unauthorised disclosure of any information obtained about me prior to, during, or after the period of employment with your organisation. You are also reminded of Principle 8 of the Privacy Act in relation to the use of any information held about me, in that if any disclosure occurs it must be accurate, up to date, complete, relevant, and not misleading.

Principle 11 of the Privacy Act sets out the circumstances in which private information about me may be disclosed, as follows:

  1. If the information was obtained for the purpose of disclosure
  2. If the information is publically available information
  3. If I am the person to whom disclosure is made
  4. If I expressly authorise disclosure
  5. If disclosure is required to uphold the law, or for the protection of public revenue
  6. If disclosure is necessary to prevent or lessen a serious threat to public health or safety or to me
  7. If disclosure is necessary to facilitate the sale of the business as a going concern
  8. If I am not identified by the disclosure
  9. If the disclosure is made by direction of the Privacy Commissioner

I can think of no circumstances in which any of the above would apply, and you are asked to refrain from sharing any personal information about me to any employee, customer, or client, or any third party without having viewed my express written consent to do so. Failure to comply with the principles of the Privacy Act may result in action being taken with the Privacy Commission in respect of any breach.

You are also reminded of your obligation to secure any information which your employees (my former co-workers) may have had access to. You are asked to remind employees of their obligations to keep confidential any information obtained about me through the workplace. A failure to take appropriate steps to secure my information in terms of its access and subsequent disclosure by your employees or even former employees could also result in action for a Privacy breach being taken against you.

I hope it will not be necessary to discuss this matter again. Thank you for your cooperation.

Kind regards,
Your ex-employee