Are You Aware of Pre-Employment Obligations?

We've been providing our clients with a fair bit of recruitment support lately, so an article by John Wilson and Kieran Pender of Bradley Allen Love in the current edition of HRM (the official magazine of the Australian Human Resources Institute – yes, exciting stuff!), caught my attention.

The authors make the valid point that, while most employers think that their legal obligations begin only once someone is employed, there are in fact several obligations that employers need to be mindful of prior to employment commencing.The article discusses the following 4 areas:

1. Deceptive Conduct – Employers are obliged to accurately (or at least not inaccurately) describe the role, terms and conditions of employment and nature/status of the business. To not do so may breach both common law and Australian Consumer Law which prohibits misleading and deceptive conduct. In extreme cases of deliberately deceptive conduct, the awarding of damages is a possibility.

The authors reference the case of Moss v Lowe Hunt & Partners in which an individual was lured away from his own business to full-time employment with a client. Apart from the attractive remuneration on offer, the individual relied upon comments made relating to the success of the company.He subsequently found that the company was in effect insolvent, but for the support of a parent company. The judge found that the company had engaged in misleading and deceptive conduct and awarded the complainant more than $300,000 in damages.

2. Discrimination – Thankfully, most employers are generally aware of the obligation to not discriminate against job applicants on the basis of a range of attributes defined by the legislation, including gender, age, disability, race, sexual orientation, pregnancy and/or other family responsibilities.

That said, some employers in my experience can occasionally "slip up" during the recruitment process and ask questions that may leave them open to a claim of discrimination. Questions such as "Do you have kids, how many and how old are they?" is a classic example. While some employers might genuinely intend this as part of building rapport and/or an attempt to understand the availability of the candidate to do work outside of standard hours and/or undertake job-related travel, for example, a disgruntled candidate may in fact see it quite differently. Such questions are best avoided altogether. You can work on establishing rapport in other ways, or later on in the relationship, and you can assess the availability of the candidate for working outside standard hours and/or undertaking travel with other questions such as "It is a requirement that the person in this position be available to occasionally work outside standard hours and/or undertake travel to visit clients. Would you be able to meet that requirement?".

Note that there are occasions in which discrimination may be deemed to be lawful (eg.if it's an inherent requirement of the job that the person be able to drive a vehicle, and the candidate has a disability that prohibits them being able to drive). If in doubt, seek support.

3. Privacy – The Privacy Act 1988 imposes obligations relating to the handling, use and management of personal information upon organisations and businesses that fall within its scope. While not all organisations/businesses are subject to the legislation, and there are some exemptions related to the "employment records" of current and former employees, there are no exemptions relating to the personal information of unsuccessful applicants.

An unsuccessful applicant, for example, may be able to request a copy of all information relevant to them (so be careful of any comments you might make in recruitment/selection –related documentation!).Organisations/businesses should also take steps to ensure the security of personal information provided by unsuccessful candidates.

Privacy can be a complex area. For further information, and to see if your organisation/business falls within the scope of the legislation, refer to the Office of the Australian Information Commissioner.

4. Accuracy/Honesty in the Application Process – OK, so this one relates more to candidates than employers, though it can still impact employers insofar as the taking of action against someone who has been dishonest in their application is concerned.

While it's not necessarily an absolutely right, it's generally accepted that employers can take action against an employee who is subsequently found to have been dishonest in their application for a role. The case of employers taking such action will be much stronger if it's made clear in the application process and/or subsequent employment letter/contract that action may be taken against a person found to have been untruthful. Apart from terminating employment, a dishonest candidate who is subsequently engaged and dismissed could potentially also be sued for damages.

If you find that an employee has been untruthful in their application and you wish to take action against them, you would be wise to seek specialist support.

So, next time you're undertaking a recruitment process, keep in mind that your obligations don't just commence once the employment relation proper starts. Of course let us know if you need further information/support.

This article provides general information only and should not be regarded as legal advice. If you are unsure, you should seek support relating to your specific situation.
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