the seven golden rules of hiring a legal guide for employers

a legal guide for employers
the seven golden rules of hiring
1
Present the
job honestly
When you advertise your
vacancy in the marketplace, you and your
recruitment consultant will want to
present the job in the most attractive light
possible. However, the Trade Practices Act
prohibits a corporation from engaging in
conduct that is misleading or deceptive,
or that is likely to mislead or deceive.
Example
In a recent case, a leading stockbroking
firm was found to have engaged in
misleading and deceptive conduct when
it told an applicant for a senior role that
the terms of his employment would not
change when the employer's business
was acquired by another company. The
applicant relied on these representations
by taking steps to leave his job as quickly
as possible. The court found that the
employer had breached the Trade Practices
Act, rendering it liable for damages
and costs.
Golden rule: When you are advertising
and recruiting be honest: don't
exaggerate the role simply to secure
the best candidate.
2
Recruit
fairly
An employer must not
discriminate unlawfully in relation to job
selection criteria, employment offers, or
employment terms. In Victoria, as a general
rule, and unless a statutory exception
applies, it is discriminatory to treat one
job applicant less favourably than another
on the basis of age, gender, disability,
pregnancy or potential pregnancy, race,
religion, political opinion, medical or criminal
record, marital status, sexual preference,
union activity or physical features.
Example
A man was refused employment as a pilot
because of his age. The airline argued
that it cost a great deal to train pilots and
the man would be likely to be a pilot for a
shorter period, due to his age. The airline
was found to have discriminated against
the man on the grounds of his age and
was ordered to remove age as a selection
criteria for new pilots.
Golden rule: Consider all job
applications, short list and make
job offers on the basis of skills,
experience and qualifications in
relation to fair selection criteria only.
3
Screen
candidates
by relevant
criteria
Employers often seek information about
prospective employees by conducting
pre-employment checks on such matters
as the candidate's medical or criminal
record. It is unlawful to refuse to hire an
applicant on the basis of his or her medical
or criminal record, unless the refusal is
based on the inherent requirements of the
position. However, an employer is entitled
to request that an applicant undertake a
pre-employment criminal check or medical
test, if it is genuinely necessary to determine
whether the applicant is suitable for the role.
Example
A man seeking work as a school cleaner
was denied a job on the basis of his
criminal record, which showed a history
of volatility and violence, particularly
after drinking. The denial was held to
be justified, because of the risk of the
man displaying aggressive and violent
behaviour around school-aged children.
Golden rule: Before requiring criminal
record or medical checks, ensure that
the results are genuinely relevant to
the position being filled.
4
Application
forms
An employment application
form can list the duties of the role and ask
the applicant about any pre-existing illness
or injury, which the applicant is aware of
and could reasonably foresee being affected
by those duties. If the application form
correctly refers to and complies with relevant
provisions of workcover legislation, an
employer can avoid workers' compensation
liability in relation to an exacerbation of
a pre-existing injury, which the employee
did not disclose. However, if the applicant
does disclose such an injury, you must
not discriminate against him or her on the
basis of that injury, unless it means that
the applicant could not safely perform the
inherent requirements of the role.
Example
An employee who had previously sustained
a knee injury on the factory floor, but failed
to disclose this pre-existing injury in his
job application, would not be entitled to
workers' compensation for an aggravation of
the injury, suffered in the new employment.
Golden rule: Written application
forms should set out the physical
requirements of the position, request
disclosure of all relevant pre-existing
injuries, correctly cite the legislative
provision that requires the applicant
to disclose this information, and state
the consequences of failing to make
a full disclosure.
5
Job
interviews
Questions in job interviews
that focus on any unlawful ground of
discrimination can themselves be found to
be discriminatory. Questions should focus
on whether the candidate can perform
the requirements of the role, for example
whether a candidate can work back late
on short notice, if that is a requirement of
the role, and not on irrelevant factors such
as the candidate's childcare arrangements.
Examples
In a recent case, a female candidate with
extensive relevant experience was asked
a number of questions pertaining to her
marital status and her intention to have
children. These questions were found to
be discriminatory as they were not
relevant to the role.
Golden rule: For consistency, a set
of questions should be developed
and asked of all job applicants,
which allow for an assessment of
the applicant's suitability against the
job selection criteria. This will help
avoid discriminatory questions and
keep the interview on track.
6
Level 21
333 Collins Street
Melbourne VIC 3000
Australia
DX38455 Melbourne
Telephone
61 3 9229 9999
Facsimile
61 3 9229 9900
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Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
DX489 Sydney
Telephone
61 2 9226 7100
Facsimile
61 2 9226 7120
www.abl.com.au
Making
an offer
When making an offer,
always make it clear to the applicant if
the offer is conditional on some yet to
be completed event, such as a reference
check or the results of medical tests. If an
employer makes an unconditional offer to
a candidate but later wants to withdraw
that offer, the withdrawal must occur
before the candidate accepts the offer.
Otherwise, the candidate can claim that
a binding contract of employment had
been formed, and sue for the breach of
that contract when employment does
not eventuate.
Example
A man applied for a job as an 'aircraft
handler', performing engineering and
maintenance duties. At one of his
interviews, he was asked to perform a
typical task required of an aircraft handler,
to see whether it would aggravate a
previous wrist injury. He performed the
task, and was offered employment.
On arriving for his first day at work, he
was told that he would not be employed
because he had failed a medical test.
It was found that the employment
relationship had already been created
and, also, that the employer sought to
terminate the employment based on the
man's impairment (his wrist injury) and
that this was discriminatory.
Golden rule: Do not make an
unconditional offer of employment
unless you have all the information
you need to be able to make the offer
– if you don't have that information
and want to make a conditional offer,
ensure that the applicant clearly
understands the conditions that
apply to the offer.
7
Contract of
employment:
Probationary
period
The primary purpose of an employment
contract is to avoid any later dispute as to
the terms of the employment. A contract
sets out an employee's benefits, but can
also impose conditions on the employment,
such as a probationary period. Employees
cannot issue unfair dismissal proceedings
relating to the termination of their
employment during, or at the end of,
a probationary period, provided that
the probationary period is agreed before
employment starts, is set out in writing
and signed by the employee. However,
if the probationary period is unreasonably
long, it will not be enforced.
Example
In one case, it was found that a four-year
probationary period was unreasonable for
an ambulance driver. During that period,
the driver was given three years of
training, followed by a 12 month period
during which there were on-the-job
assessments. In that case, it was found
that a three month probationary period
would have been reasonable.
Golden rule: It is essential that new
employees be given a written contract
of employment, even if it is in the form
of a letter of offer, that sets out the terms
and conditions that will govern the
employment relationship. The contract
must be as clear as possible to avoid
later disputation. A written contract of
employment benefits both the employer
and employee, and should always be
used when employing a new person
in a business. Always use a written
contract where you wish to apply a
probationary period, and ensure that
the period is reasonable.
If you are in doubt about whether
any aspect of your hiring campaign
infringes any of these rules, you should
seek legal advice. For any queries,
please contact:
Gary Rothville, Partner
Telephone 61 3 9229 9792
[email protected]
Cathy Fitz Gibbon, Senior Associate
Telephone 61 3 9229 9763
[email protected]
Kishanie Wijewickrama, Senior Associate
Telephone 61 3 9229 9849
[email protected]
Kirsten Frew, Senior Associate
Telephone 61 3 9229 9749
[email protected]
Nicole Gordon, Senior Associate
Telephone 61 3 9229 9783
[email protected]
Debra Paver, Solicitor
Telephone 61 3 9229 9924
[email protected]
Rachel Rudd, Solicitor
Telephone 61 3 9229 9784
[email protected]
Verity Okno, Solicitor
Telephone 61 3 9229 9648
[email protected]
This publication is intended to provide a
general outline and is not intended to be
a complete or definitive statement of the
law on the subject matter covered. Further
professional advice should be sought
before any action is taken in relation to
the matters described in this publication.