Former Employer Won’t Give You a Reference? Here Is What You Can Actually Do

You worked there for three years. You left on decent terms, or so you thought. Now every job application stalls at the reference check because your old boss won’t return calls, or worse, you’ve heard they’re saying things about you that aren’t true.

It feels like they’re holding your career hostage. Here’s the honest legal picture, and what you can do about it.

The short answer: in Australia a former employer generally does not have to give you a reference. What you can insist on is narrower: a copy of your own employee records, and an Employment Separation Certificate if you ask for one. You can also ask for a short statement of service confirming your role and dates. And if your old employer is telling people things about you that are untrue, defamation law may apply.

The hard truth: there’s no general legal right to a reference

No general Australian law requires an employer to write you a reference, and the Fair Work Act 2009 doesn’t require one. Your contract, award or enterprise agreement might say something about references or statements of service, so check it, but most don’t.

Many employers refuse as a matter of policy, not because of anything you did. The Fair Work Ombudsman’s own workplace privacy guide for employers notes that some employers have a policy of not providing references and only confirming whether the employee worked for their organisation. It suggests those employers tell the reference checker that it is a general policy and not a reflection on the employee. If that is what is happening to you, it helps to say so up front to a new employer.

What a former employer must give you

A copy of your employee records

A current or former employee can ask for a copy of their own employee records, such as pay and hours. The Fair Work Ombudsman says that if the records are kept at the workplace, the employer must make a copy available there within 3 business days, or post a copy within 14 days after receiving the request. If the records are kept somewhere else, the employer must make a copy available or post it as soon as practicable.

Records are not a reference, but pay slips and records showing your start date, finish date and role are proof you worked there, and that is often what a recruiter actually needs to check.

An Employment Separation Certificate, if you ask

If you need one for Centrelink, Services Australia says an employer must provide an Employment Separation Certificate if an employee or former employee requests one. For a former employee, the right to ask comes from section 199 of the Social Security (Administration) Act 1999. Our guide to getting a separation certificate or statement of service explains what you can and cannot insist on.

A statement of service: ask, don’t demand

A statement of service is a short letter confirming your job title and dates of employment. There is no general legal requirement for an employer to write one unless your contract, award or agreement says so, so ask politely and make it easy for them. Many HR teams will confirm dates and role even when they will not give a reference.

Step by step: what to do this week

1. Ask once more, in writing, and make it easy. Email the person or HR team who knew your work. Say what you need (a reference, or just a confirmation of your role and dates), who may call, and by when. A short, specific request is easier to say yes to than an open-ended one.
2. Offer to draft it for them. A busy manager who has moved on may be happy to sign a reference that sets out facts they know to be true: your role, your dates and what you did. They should read it, change anything they don’t agree with and sign it themselves. Claim Done’s Employment Reference Letter ($29) is written for this, for the referee to read, agree with and sign.
3. Ask for your records and a statement of service. If they won’t give a reference, ask for a copy of your employee records and a statement of service confirming your role and dates. List exactly what you need and the period it covers, and say where to send it.
4. Line up other referees. A former manager who has since moved on, a supervisor, a team leader or a client who saw your work can all be referees. Prospective employers understand that not every former employer gives references.
5. Tell new employers up front. If your old employer has a no-reference policy, say so before the check and offer the statement of service, your pay slips and other referees instead. It stops a silence being read as a red flag.

When a bad reference crosses the line

An employer that chooses to give a reference has to be careful about what it says. If a former employer is telling prospective employers things about you that are false, for example that you were sacked when you resigned, or that you were dishonest when you weren’t, defamation law may apply.

Some key points from the New South Wales Defamation Act 2005 (other states and territories have their own defamation laws, so check yours):

• Serious harm. It is an element of a defamation claim that the publication caused, or is likely to cause, serious harm to your reputation (section 10A).
• Qualified privilege. There is a defence of qualified privilege for giving information to someone who has an interest in it, if the publisher’s conduct was reasonable in the circumstances. A reference given to a prospective employer can fall within it. The defence is defeated if you prove the publication was actuated by malice (section 30).
• A concerns notice comes first. You cannot start defamation proceedings unless you have first given the publisher a written concerns notice that sets out the imputations you complain of and the serious harm (sections 12A and 12B).

Defamation claims are complex and can be expensive. Before going down that path, write down exactly what was said, to whom and when, and ask the prospective employer for the details if they will give them. Claim Done’s Defamation Concerns Notice ($49) sets out your concerns in writing. For advice on whether you have a claim, speak to a lawyer.

If you think your old employer is refusing a reference, or giving a bad one, because you made a complaint or asked about your pay or entitlements, talk to the Fair Work Ombudsman or a lawyer about whether the general protections in the Fair Work Act apply to you.

How to find out what they’re saying

Ask a prospective employer directly whether a reference check was done and what was said. Many will tell you, at least in general terms. If you’re told the reference was negative or false, write down exactly what was said, by whom and when, and keep any emails.

A simple request you can adapt

Copy this, fill in the brackets and send it by email so you have a dated record.

Dear [name],

I worked at [business name] as [role] from [start date] to [end date]. I am applying for new roles and would be grateful for a short written reference or, if that is not something you provide, a statement of service confirming my role and dates of employment.

I would also like a copy of my employee records for [period], including my pay slips. Please send them to [email address or postal address].

Thank you for your help. I would appreciate a reply by [date, about 14 days from today].

Kind regards,
[your name]
[phone]

Frequently asked questions

Can an employer refuse to give a reference in Australia?

Generally, yes. No general law requires a reference, and the Fair Work Ombudsman notes that some employers have a policy of only confirming that a person worked for them. Check your contract, award or enterprise agreement in case it says otherwise.

What should I do if my previous employer is giving me a bad reference?

Find out exactly what was said and to whom, and keep notes. If it is untrue and damaging, the defamation rules above may apply: in New South Wales the publication must cause, or be likely to cause, serious harm; a reference given reasonably can be protected by qualified privilege unless malice is proven; and you must send a concerns notice before you can sue. In the meantime, use other referees and give new employers your statement of service and records.

Can I make my former employer give me a statement of service?

Not under a general law, unless your contract, award or agreement requires one. What you can require is a copy of your employee records, and an Employment Separation Certificate if you ask for one.

How long does a former employer have to give me my employee records?

The Fair Work Ombudsman says that if the records are kept at the workplace, the employer must make a copy available there within 3 business days or post a copy within 14 days after receiving your request. If they are kept elsewhere, as soon as practicable.

Can I write my own reference for my old manager to sign?

Yes, as long as it is truthful and they read and agree with it before they sign. A reference should only say what the referee knows and is willing to stand behind.

Timing

Every application that stalls on a reference check costs you. Send the request this week, line up other referees now, and keep copies of everything.

Claim Done drafts your Request for Employment Records from your answers for $29: a clear, polite letter listing the records, statement of service or separation certificate you need, and where to send them. Done in about 5 minutes. You read it and approve it before it is sent.