Employee recruitment has become a minefield, which recruitment agency Millennium People will attest to following the recruitment of Mr John Davy for Maori Television Service.
Faced with legislation such as the Employment Relations Act, Human Rights Act and the Privacy Act, some employers believe they can only ask prospective job candidates four questions at job interviews:
The name of the applicant; A contact address; The relevant qualification of the applicant; and Any matters relevant to the applicant's ability to perform the job - i.e. whether a truck driver has an appropriate driver's licence.If this restricted view were correct, the consequences would be disastrous for employers. Take, for example, the Davy case, which involved his sacking last month for falsifying details of his background including the qualifications he represented in his CV.
While even the most fastidious of employers (or recruitment agencies) may not have uncovered the entire truth in this situation, it nevertheless highlights the importance of an employer knowing what it can ask a job applicant on forms and in pre-employment interviews, and in obtaining authorisation to carry out proper reference and qualification checks.
Collecting informationHiring the wrong person will be costly. Apart from the direct costs, it will have a detrimental effect on other staff. Also, personal grievance actions are time-consuming and expensive. It is therefore important that employers collect as much information as legally possible from and about a prospective employee.
However, an employer can only collect relevant information about a prospective employee with the applicant's consent. A well-structured job application form and interview is the best starting point. An employer might also get a signed authorisation from the candidate, authorising the employer to enquire about previous criminal charges and convictions, and carry out proper reference and qualifications checks.
The Courts have affirmed that contracts of employment are not umberrimae fidei (requiring utmost good faith), and there is no obligation for a prospective employee to disclose information to his/her disadvantage at a pre-employment stage, unless specifically asked.
The case lawIn Fletcher v Krill (1873) and Healey v Societe Anonyme Franchise Rubastic (1917), the Courts held that a prospective employee was under no duty to divulge discredible events in his/her past life. On the other hand, although prospective employees may not volunteer negative information about their background, they may not lie if asked a direct question by a prospective employer. A deliberate misstatement about the applicant's background at the beginning of the employment relationship goes to the root of the contract and destroys the mutual relationship of trust and good faith.
Lying about work experience, qualifications or other achievements to get a job may provide grounds for dismissal.
The right to cancel an employment contract under the Contractual Remedies Act 1997 may also apply in certain situations. However, the Courts have held that the right to cancel will only arise if the truth of the representation is essential to the party cancelling the contract.
It is therefore critical that employers seek full disclosure from and about the applicant.
However, the provisions of the Human Rights Act 1992 and Privacy Act 1993 must be complied with.
Human Rights ActThe intention of the Human Rights Act is to ensure that people are treated fairly in several areas of public life and commerce. It bans certain discrimination in hiring employees, contract workers and volunteers. Where an applicant is qualified for a job, it is unlawful for an employer, or a person acting on behalf of an employer, to discriminate against that person on any of the grounds covered by the Act.
Such discrimination may include failing to make a job offer, or offering employment on less favourable terms such as different superannuation, fringe benefits, or opportunities for training, transfer and promotion.
The grounds specified in the Act are:
Gender. It is also illegal to discriminate on the grounds that the applicant for employment is pregnant. Marital status. Family status - including, for example, having, or not having, responsibility for children or dependants. Religious or ethical beliefs. Colour, race, and ethnic or national origins. Disability - including, for example, physical disability and illness, sensory impairment, psychiatric illness or the presence in the body of organisms capable of causing illness. Age - between, and including, age 16 and the age of eligibility for New Zealand Superannuation and matters to do with work and training. Political opinion, including not having a political opinion. Employment status - that is, being unemployed or a beneficiary. Sexual orientation - that is, of heterosexual, homosexual or bisexual orientation.The Human Rights Act does not necessarily prevent questioning or seeking information in these areas, but it does ban discrimination on these grounds. For this reason, any questions need to be carefully considered for relevance before being asked.
Privacy ActThe Privacy Act 1993 contains information privacy principles, and sets out rules concerning the collection, storage, use and disclosure of "personal information". These grant an individual the right to access of, and the right to request correction of, such information. "Personal information" means information about an identifiable individual but does not include information about companies or other corporate bodies.
For employment interviews or job applications to comply with the Privacy Act principles, job application forms must have regard to the specific questions being asked of a prospective job applicant.
An individual may be asked to provide only such information as is necessary for a lawful purpose connected with the function or activity of the employer. This also applies to a pre-employment interview. Where possible, the information on a job application form should be collected directly from the individual.
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
For further information please contact the author Anthony Drake, Senior Associate
Email: anthony.drake@bellgully.com
Web site:
Bell Gully