- Nicole Dunn, Partner, Carroll & O'Dea Lawyers
The start of a new working year often brings with it a review of staffing requirements and the engagement of new employees. Engaging a new employee can be stressful and is often an expensive exercise for an organisation. Accordingly, it is important to establish a system that will put the business in the best possible position to secure the right person for the job.
The engagement process will usually involve the following steps:
- Determine the requirements and create the position & position description
- Advertise the role
- Review applications
- Conduct interviews
- Check references
- Make an offer (subject to contract)
- Draft & provide written contract to candidate
- Receive the signed contract
Prior to undertaking the task it is essential that employers are clear on what they are looking to achieve in filling the role before engaging an applicant. There are also many legal issues to consider throughout the process. It is imperative that employers are frank with candidates regarding the nature, terms and conditions of employment and do not make promises which are subsequently not kept. Employers must also ensure they do not fall foul of anti-discrimination laws.
Below are some tips to integrate into your employee engagement checklist:
✓ DO obtain permission from candidates to contact referees. Give candidates an opportunity to comment on any referee bias.
✓ DO ensure information is kept confidential.
✓ DO ensure the selection criteria are objective and applied fairly.
✓ DO make it clear that any verbal offer made is subject to the employee signing a letter of offer of employment or contract and make sure a time frame is set for the return of the signed document and that if it is not returned by that date the offer will lapse.
✓ DO ensure the letter of offer of employment or contract sets out the terms of the engagement and termination clause.
✕ DON’T include any requirements or characteristics in an advertisement which are unnecessary or irrelevant to the position.
✕ DON’T use gender specific terms in an advertisement such as “workman” or cite requirements about gender, age, race, religious belief, marital status, sexual preference, and pregnancy. Doing so leaves room for discrimination claims to be made.
✕ DON’T ask irrelevant questions during the interview. Questions on gender, age, race, religious belief, marital status, sexual preference, and pregnancy should simply not be asked at all. These questions raise issues of discrimination whether or not the response is actually relied upon in filling a role.
In the case of Hopper & Ors v Virgin Blue  QADT9, former Ansett hostesses who applied for positions with Virgin Blue, were asked their age and required to sing and dance during the interview process and were assessed as to whether they had the “Virgin Flair”. Only one applicant over the age of 35 was successful from over 750 applicants. The Anti-Discrimination Tribunal in Queensland, noted that the recruitment process suffered from significant inadequacies, the young and inexperienced assessors had favoured people of similar age and life experience as themselves and had discriminated against the applicants on the basis of age.
✕ DON’T make promises you can’t keep. Don’t include in the advertisement of a role or when interviewing details of the role which may change. Employers must do their best to accurately describe the position and must not engage in conduct which may mislead or deceive a candidate regarding the availability, nature or the terms and conditions of the work. Doing so can expose an employer to claims that they have induced an employee by making untrue or unjustifiable promises about the benefits of the new role to the employees detriment. It is important to remember that internet/intranet and noticeboards are published advertisements, so statements made in them should not be treated casually either.
The Australian Consumer Law (ACL) contains provisions specifically relating to employment arrangements. Section 31 of the ACL prohibits an employer from misleading a job-seeker as to matters relating to employment. Such conduct is also a criminal offence under section 153 of the ACL. These provisions apply only to pre employment conduct. In the decision of Moss v. Lowe Hunt & Partners Pty Ltd  it was found that Lowe Hunt & Partners had engaged in misleading and deceptive conduct in its attempts to procure the services of Mr Moss, a successful advertising planning director. The Court found that the company engaged in misleading and deceptive conduct by representing the advertising agency as being financially successful, when in reality but for the financial support of its parent company, it would have been insolvent. Justice Katzmann said at : “The representation was not made directly to Mr. Moss but it was made in his presence, at a time when Mr. Colman was courting him to come and work for Lowe Hunt. To make glowing statements of this kind without qualification at any stage in this process was misleading, especially when one of them was admittedly false. This was a situation in which silence was apt to mislead. The circumstances here called for disclosure. This does not necessarily mean that Lowe Hunt had to open its books to Mr Moss for inspection. But it should have been candid with him before he entered into a contract of employment…”
✕ DON’T breach the minimum standards set by the National Employment Standards (NES) or any applicable award or enterprise agreement. Ensure that the terms on which the employee is engaged at least meet the NES, any applicable award or enterprise agreement. These cannot be reduced or undermined by contract.
Employers should review the above at each stage of the engagement process to avoid further stress and expense down the track.
About Nicole Dunn:
Nicole has extensive experience in advising and representing clients in both litigious and non-litigious matters arising from employment and contract disputes and negligence claims. Nicole has assisted individual and business clients with employment and contractor agreements, enterprise agreements, policies and procedures, disciplinary matters, legislation and termination issues. Nicole participates in disciplinary meetings and assists both employers and individuals in preparing and responding to disciplinary matters including warnings arising from workplace misconduct and discrimination.
Although based in the Sydney office for Carroll & O’Dea Lawyers, Nicole has a client base in Darwin and will regularly travel to the Northern Territory to assist clients based there.
Nicole has conducted litigation in the Federal Court and Federal Magistrates’ Court, Supreme Courts of New South Wales and the Northern Territory, the Fair Work Commission (formerly Fair Work Australia), the Local Court of New South Wales and the Magistrates Court in the Northern Territory.