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Failure to launch
All organisations need to be aware of their
BY JOHN WILSON AND KIERAN PENDER, BRADLEY ALLEN LOVE
Most of the legal obligations in the
employment relationship begin when a
staff member comes on board and end
with their resignation or termination. But the
time before and following employment is hardly
a legal black hole. There is a range of obligations
HR needs to be aware of that regulate conduct
before a prospective employee begins.
In the hiring process, employers should pay
careful attention to accuracy when advertising
a role. It may be tempting to portray a position
in the best possible light, but this may not only
anger the new employee when they are actually
doing the job, it may be in breach of the law.
Both common law and Australian Consumer
Law prohibit misleading and deceptive conduct
in the pre-employment setting. The former
offers remedies depending on the severity of the
misrepresentation and the existence of intent,
ranging from prohibition on enforcing the
contract to damages. The latter says in statute
that an employer can't mislead prospective
employees as to "the availability, nature, terms
or conditions of the employment" or related
matters. If they do, penalties can be hefty.
In Moss v Lowe Hunt & Partners, a
consultant was seduced away from his own
business and into a full-time position with a
client. Moss initially resisted the overtures, but
an attractive salary and guarantees about the
company's success persuaded him. The business,
however, was not successful. As the judgement
began: "This case is all about adjectives." Was
it misleading or deceptive to describe a business
as "successful" when, but for the support of a
troubled parent company, it would be insolvent?
Justice Katzmann held it was, and awarded
$306,740 in damages.
Candidates also have an obligation to be honest
in the hiring process. The law isn't as clear in
this area, but it's widely accepted that lying in a
job interview represents a legitimate ground for
firing an employee.
In such cases, an employer can terminate
the contract and sue for damages (if any are
suffered), and use it as a defence in a subsequent
unfair dismissal application. In Jacques v
McCarroll Motor Group, a trainee mechanic
said he had "around six modules to complete"
and that he would do so quickly. Almost a year
later, it emerged that the trainee had 14 modules
remaining. He lost his unfair dismissal case.
Many anti-discrimination laws apply to both
prospective employees and employers. In
the hiring process, anti-discrimination laws
often have a direct impact. It's unlawful to
discriminate on the basis of age, disability, race,
gender, sexual orientation, pregnancy, family
responsibilities and a range of other attributes.
If an employer doesn't hire someone because
they are the parent of a young child and they are
concerned about their likely responsibilities, it
would be unlawful discrimination. There are,
however, exceptions where a certain attribute is
an inherent requirement of the job.
The applicant could bring claims either
via discrimination legislation, which requires
conciliation before the Australian Human Rights
Commission (AHRC) before legal proceedings
can begin, or under the Fair Work Act's adverse
action provisions. The latter can be more
favourable to the applicant, as the employer
is required to prove the prospective employee
was not "not hired" because of the protected
attribute, but for another legitimate reason.
A notable form of discrimination concerns
criminal records. In CG v RailCorp NSW, the
AHRC investigated after an applicant was not
hired for a market analyst position on the basis
that he had two drink driving convictions. The
AHRC found that driving or safety matters were
not relevant to the inherent requirements of a
market analyst position, and that RailCorp had
therefore discriminated against CG.
While the Privacy Act 1988 exempts records
relating to past and present employees, this
doesn't apply to unsuccessful candidates.
Any records held about applicants -- which
is a common practice, together with the line
"we will keep your application on file for any
future opportunities that may arise"-- must be
held in accordance with the Australian Privacy
Principles, if the organisation falls within the
Principles' scope. An unsuccessful applicant may
be able to request a copy of all records held in
relation to them, and can reasonably expect their
records to be kept secure. •••
accepted that lying
in a job interview
legitimate ground for
ring an employee."
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