Recruitment Issues
1. A comprehensive and robust recruitment process is extremely
important for employers for a variety of reasons. Firstly, it acts as
a recruitment information gathering device, enabling the decision maker
to obtain relevant information about an individual which is then
utilised to make a fully informed decision about the appointment.
2.
Secondly, it acts as a recruitment risk management tool. The
representations made by both the individual and the employer can be
relied upon by both parties. From the employer’s perspective, a
properly drafted application form reduces the chances of employing
unsuitable, or, worse, undesirable employees. From an employee
perspective, a thorough recruitment process enables a proper assessment
of skill match and likely job satisfaction.
3.
Thirdly, an application form that successfully provides an employer
with an accurate “picture� of the individual enhances the
likelihood that the employee will be a “good fit� for that
particular employment environment. Therefore, the risk of future
potential personal grievances will be reduced. After all, as will be
recognised by any employer “getting the best person for the job is a
vital element of any employer’s human resource strategy [1] �.
4. The recruitment process involves four distinct phases:
(a) Phase 1 – Advertising
(b) Phase 2 – Pre-Employment Application Form
(c) Phase 3 – Interviews
(d) Phase 4 – Appointment Decision/Training
5.
Each phase raises legal issues for the employer, which will be
discussed in detail below. A number of pertinent case studies will
also be discussed.
I. ADVERTISING
6. Placing an advertisement for a position raises two questions for an employer:
· Am I being accurate about the position?
· Does the wording of the advertisement suggest a form of discrimination?
Misrepresentation
7.
Before placing an advertisement for a role, it is essential for an
employer to take the time and effort to accurately evaluate the
position. Job evaluation requires a determination of the
skill/knowledge gap to be filled, and the specific criteria that an
individual must possess in order to fill that gap. If an employer is
certain about the position requirements and competencies, the
likelihood of presenting an inaccurate “picture� of the vacancy
when advertising it will be substantially diminished.
8.
Placing an advertisement for a role which inaccurately portrays the job
content, remuneration package, or any other relevant component of the
position, could lead to significant difficulties if the inaccuracies
are perpetuated throughout the interview and selection process. In
other words, if an individual accepts an offer of employment believing
the role and the terms and conditions of employment to be “A� when
the components of the role are actually “B�, the employer could be
held liable for damages caused by the misrepresentation.
9.
In such circumstances, and pursuant to the Contractual Remedies Act
1979, the burden of proving that the misrepresentation occurred and
that it induced the individual to accept the role, falls upon the
individual. If the individual is successful, then the Employment
Court/Employment Relations Authority will treat the misrepresentation
as if it were a term of the contract. The employer’s subsequent
failure to comply with that term means that they will have breached the
employment agreement.
10. As a result, the employer would
be liable for a penalty for breach of an employment agreement pursuant
to the Employment Relations Act 2000. The penalty is up to $5,000 for
an individual employer and $10,000 in the case of a company or other
corporate employer entity. The applicable legislative sections are set
out below.
“Contractual Remedies Act 1979
Section 6 – Damages for Misrepresentation
(1)
If a party to a contract has been induced to enter into it by a
misrepresentation, whether innocent or fraudulent, made to him by or on
behalf of another party to that contract –
(a) he shall
be entitled to damages from that other party in the same manner and to
the same extent as if the representation were a term of the contract
that has been broken; and
Employment Relations Act 2000
Section 133 – Jurisdiction Concerning Penalties
(1)
The Authority has full and exclusive jurisdiction to deal with all
actions for the recovery of penalties under this Act -
(a) for any breach of any employment agreement ….
Section 134 – Penalties for Breach of Employment Agreement
(1) Every party to an employment agreement who breaches that agreement is liable to a penalty under this Act.
(2)
Every person who incites, instigates, aids or abets any breach of an
employment agreement is liable to a penalty imposed by the Authority …
Section 135 – Recovery of Penalties
(1) Every person who is liable to a penalty under this Act is liable –
(a) in the case of an individual, to a penalty not exceeding $5,000;
(b) in the case of a company or other corporation, to a penalty not exceeding $10,000.�
Case Study 1
11.
This case demonstrates that written advertisements can be interpreted
differently by different parties. The advertisement included the phrase
–
“The appointment will be for a period of five years in the first instance …�
12.
The advertisement also stated that applications were to be sent to the
appointments administrator. Ms L applied for the role and was invited
along with a number of other applicants to attend a succession of
meetings, public lecture and discussions with a senior representative
of the employer who facilitated the appointment process. At the end of
the meetings and discussions Ms L participated in a formal interview
with a panel of 11 interviewers.
13. Eventually a verbal
offer was made to Ms L which she accepted both orally and in writing.
Neither her oral acceptance nor her letter specified whether the
position she accepted was for a fixed term for five years or not. That
same day the employer wrote to Ms L and confirmed its verbal offer.
The letter stated –
“In accordance with the advertised conditions, the appointment will be for five years …�
14.
Eight days later Ms L responded to the employer’s written offer and
accepted it. Her acceptance letter did not question the five year term.
15.
Ms L argued that as a result of attending the meetings, the interview
and various discussions with the employer representative, she believed
that the position was for a permanent period, rather than from a
limited period of five years. The employer argued that the role was
for a limited period of five years. The matter went to trial.
16.
During the hearing, Ms L said that before she had attended her
interview with the interview panel, she had spoken with the
employer’s representative to make absolutely clear that the phrase
“first instance� in the advertisement signalled at least a second
instance, i.e. a second opportunity to continue the employment for a
period longer than five years. The employer’s representative did not
have a specific recollection of the discussion with Ms L, however he
agreed that it was likely that he would have told her that there was a
possibility that the position might continue after the initial five
year term because that was the standard response he had given to all
applicants. In addition the employer hoped that the position would
continue after the first five year instance. However the employer’s
representative did not recall saying anything to Ms L that the
appointment was for a permanent open tenure position rather than a
limited term of five years.
17. The Court considered the
evidence from both Ms L and from the employer. It noted that
notwithstanding the advertisement references to an appointments
administrator, Ms L had not contacted that person with any queries
about the advertisement prior to application. The Court was not
persuaded that the employer had represented that the position was at
open tenure. It held that the employer’s written offer of employment
expressly described the position as being for a limited term and that
Ms L had accepted it without qualifying the written reference in the
offer for a five year appointment [2] .
Discrimination
18.
Pursuant to both the Human Rights Act 1993 and the Employment Relations
Act 2000 it is illegal for an employer to advertise in a manner that
indicates an intention to discriminate, or to advertise in a manner
which could reasonably be understood as indicating an intention to
discriminate. In terms of placing any position advertisement
discrimination occurs where the advertisement indicates that:
(a)
An individual will be treated less favourably than others who have the
same or substantially similar qualifications; and
(b) One
of the prohibited grounds of discrimination is a substantive or
operative factor that causes the less favourable treatment.
19.
Furthermore, any newspaper or publication entity that allows a
discriminatory advertisement to be published is also acting illegally.
The intention of the person/entity placing the advertisement is
irrelevant. The determining issue is the impression that the
advertisement creates for a reasonable person.
20. The unlawful grounds of discrimination are:
· Age
· Marital status
· Colour
· Political opinion
· Disability
· Race
· Employment status
· Religious or ethical belief
· Ethnic or national origins
· Sex
· Family status
· Sexual orientation
21.
The Human Rights Act specifically provides that the use of a job
description with a gender connotation shall be taken to indicate an
intention to discriminate unless the advertisement contains an
indication to the contrary.
22. There are some exceptions
to discrimination that specifically relate to employment. For example,
it is lawful to specify an age to work in licensed premises. It is
also lawful to discriminate on the basis of political opinion for
domestic employment in a private household. Another example is
advertising for a social worker position for a religious organisation,
(for example the clergy, religious officials or religious teachers).
In such circumstances it is not unlawful to discriminate on the basis
of religious or ethical belief.
23. The Human Rights
Commission has published an Advertising Guidelines brochure which
includes recommendations to avoid age discriminatory terms and sex
discriminatory terms in employment advertisements.
24. The
section in the advertising guidelines dealing with ways to avoid age
discriminatory terms includes advice about alternative phrases to such
words as “mature� or “junior�. Alternatives include using
experience related phrases such as “the successful applicant will
have sufficient experience to be independent and operate at a
responsible level�. Or, the advertisement could specify the type of
experience rather than requiring a certain number of years experience,
for e.g. – “a successful track record in all Courts and Tribunals
to Court of Appeal level�.
25. In relation to sex discriminatory terms, the brochure lists a number of alternatives e.g.
· Headmaster/Mistress
· Principal
· Seaman
· Seafarer/Mariner
· Stockman
· Stock Handler/Stock Manager [3]
Case Study 2
26. An employer advertised a vacancy with the following phrase:
“Keen Christian person 16 – 18, who is not afraid of work.�
27.
The vacancy was for a Service Station Attendant position. The Equal
Opportunities Tribunal applied an objective test to determine whether
the advertisement would be understood by a reasonable person as
indicating an intention to discriminate based upon the grounds of
religious belief. The test was what would an ordinary reasonable man
or reasonable woman understand by the words used in the advertisement.
In other words, would a reasonable person understand the advertisement
to mean that non Christian people were not to apply.
28.
The Equal Opportunities Tribunal held that an ordinary reasonable
person reading the advertisement would conclude that it indicated an
intention to discriminate based upon the grounds of religious belief.
The Tribunal noted that an intention to discriminate was not necessary,
all that the test required was a finding that a reasonable person would
conclude the advertisement intended to discriminate. It concluded that
because preference was to be given to individuals because of their
religious belief, the religious belief was a substantial and an
operative factor in the decision about who the employer would choose to
employ [4] . The advertisement was held to be contrary to the Human
Rights Act.
II. PRE-EMPLOYMENT APPLICATION FORM
29.
There are legal limitations as to the information that may be sought by
an employer in a pre-employment application form. These limitations
are imposed by both the Privacy Act 1993 and the Human Rights Act 1993.
30.
As previously noted, the Human Rights Act prohibits discrimination as
between prospective employees on the basis of various grounds of
discrimination. Employers who ask individuals for information about
their religion, race or age for example run the risk of breaching the
Act (refer to the Grounds of Discrimination at paragraph 20).
31.
An interesting use of pre-employment application forms concerns the
possibility of conflict of interest. Employers may wish to ascertain
whether there is a risk that the individual’s family is employed by a
competitor. An application form may include a question along the
following lines:
“Do you have a spouse, partner, relative or household member working elsewhere in the same industry as the employer?�
32.
Prima facie, the above question could constitute discrimination based
upon family status. The Human Rights Act defines family status as:
(i) Having the responsibility for part-time care or full-time care of children or other dependants; or
(ii) Having no responsibility for the care of children or other dependants; or
(iii) Being married to, or being in a relationship the nature of a marriage with, a particular person; or
(iv) Being a relative of a particular person.
33.
Therefore the conflict of interest question posed in paragraph 31 would
capture most of the familial/relationship scenarios prohibited by the
definition of family status.
34. Similarly, a question
asking whether or not the individual had family or spousal partners
already employed with the employer may constitute discrimination upon
the grounds of family and/or marital status. Employers may not wish to
employ an individual whose partner/family member already works for the
employer if there is a potential risk of conflict of interest and/or
disclosure of confidential information.
35. There is an exception to the family status ground if appointing the individual results in:
(a) The individual reporting to a spousal partner or relative who is already employed by the employer; and
(b) There is “a risk of collusion� to the employer’s detriment; or
(c) The individual’s spousal partner/relative is employed by another employer and a risk of collusion exists.
Case Study 3
36.
Although unusual, there have been cases where an employer has relied
upon the risk of collusion to determine an individual’s suitability
for a role. The following case study example, whilst not specifically
focused on a pre-employment application form, demonstrates that the
defence of a risk of collusion can apply in certain circumstances.
37.
The employee held a part-time Administrator Coordinator position, which
required her to work closely with the company’s financial files. Her
husband had also been employed by the company as its Research and
Development Controller. Her husband had recently been dismissed. He
had subsequently filed a personal grievance against the company
alleging that his dismissal was unjustified.
38. After
receiving a letter from the employee’s husband which threatened legal
action, the company became concerned about the employee’s access to
sensitive information. Because of that concern and as it did not have
any other work for the employee to perform apart from her
responsibilities involving confidential information, it decided to make
her redundant. The employee was called into the secretary’s office
and given four weeks wages in lieu of notice and told her position had
been made redundant. She claimed unjustified dismissal and the matter
went to the Employment Court.
39. The Employment Court
held that there was evidence upon which a reasonable employer could
conclude that there was a real risk that confidential information could
be leaked, whether intentionally or inadvertently by the employee. It
also held that it would have been untenable for the company to have
been required to run the risk that the employee might be party to
providing such information when her husband was taking legal action
against the company. It determined that a dismissal in the
circumstances was justified. Although the Court agreed that the
employer had a legitimate cause for the risk of collusion argument, it
held that the process used by the company in making the employee
redundant has been defective.
40. Similarly, if there was
a real risk that an individual applying for a role could disclose
confidential information either to a family member already employed by
the same employer, or to a family member employed by one of the
employer’s competitors, then the defence of a risk of collusion could
be applicable. However it is a high threshold to meet and one which an
employer would need to turn its mind to carefully before making a
decision not to appoint an individual based on that particular issue.
The Privacy Act
41.
The Privacy Act protects individuals’ personal information. It
regulates the collection, storage and use of such information. The
information obtained in pre-employment application forms is clearly
personal information and therefore falls squarely within the ambit of
the Act. A prospective employer must therefore be mindful of the
restrictions imposed on the handling of such information.
42.
When collecting personal information in a pre-employment application
form, employers are bound by the Privacy Act. The relevant principles
of the Privacy Act applicable to pre-employment issues can be
summarised as follows:
(a) The employer must collect only
personal information that is related to the purpose of assessing
whether or not the individual is appropriate for the position. The
information must therefore be connected with the function or activity
of the employer and the specific position;
(b) Where
possible, the information should be collected directly from the
individual concerned, or, with the consent of the individual;
(c)
The individual should be informed why the information is being sought
(e.g. for the purpose of assessing the individual’s suitability for
the role), who will hold it, and to whom the information may be
disclosed (e.g. human resources staff, other employer representatives
involved in the recruitment process);
(d) The applicant must be informed about his/her right to request access to and correct the personal information;
(e)
The employer must not collection personal information by any unlawful
or unfair means or means that intrude to an unreasonable extent on the
person or privacy of the individual.
43. As noted by the
Privacy Commissioner, Mr Bruce Slane, in most instances it is not that
employers have set about asking intrusive or overly broad questions –
it is more a matter of employers not accurately identifying information
needed [5] .
Medical History
44. It is frequent for a
pre-employment application form to include a question about an
individual’s medical history. Such questions are potentially
sensitive and often unnecessary for the employer’s lawful purpose.
As noted by Mr Slane [6] , the use of health based questions on
pre-employment forms seems to have increased in recent years. If a
previous medical condition is directly related to the vacancy that the
individual is applying for, then a question about medical history may
well be relevant and applicable.
45. Generic questions pertaining to previous medical history may not be necessary and could be seen as intrusive.
46.
However, this area is by no means clear cut, particularly with the
potential introduction of the Health and Safety and Employment
Amendment Bill which proposes that mental or physical harm arising out
of a work environment be included within the definition of a workplace
harm or a hazard. If the Amendment Act is passed as currently drafted,
employers may then be able to legitimately seek information about an
employee’s previous medical history pertaining to stress related
injuries/diseases. It will still be important for the employer to
establish that the information sought is necessary in order to assess
the individual’s suitability for the vacant role.
47.
Questions about previous medical history may well be relevant if the
position is physically demanding, for instance a question regarding
previous broken bones or back injuries would be relevant for a role
that requires lifting or moving of heavy objects. Essentially, the
important point is for employers to tailor the questions to suit the
requisite criteria for the particular vacant role.
48.
Employers may require individuals to undergo health checks when medical
insurance is offered as part of the intended employment agreement. It
may not be necessary for the employer to receive that information from
the medical practitioner conducting the health check.
49.
Employers who instruct medical practitioners to complete pre-employment
health checks should ensure that the practitioners are given clear
guidelines and criteria for the check. If the information is to be
passed on to the employer, the individual would need to sign an
authority form.
50. A useful mechanism to avoid legal
problems in relation to gathering personal information in a
pre-employment application form, is to prepare a list of specific
criteria for the vacancy and to seek only information relevant to that
specific criteria. Generic questions such as “Do you have any health
problems?� can be amended (and usefully restricted) to questions such
as:
“Do you have any health problems which would effect your ability for this specific role?�
51.
It is also prudent for employers to regularly review pre-employment
application forms to check that only relevant information is sought.
52.
It is also important that pre-employment application forms inform the
individuals completing them what will happen to the information. For
example some employers retain applications and/or curriculum vitae for
about twelve months in case another vacancy becomes available. If that
is the case, individuals should be informed of that particular policy.
Case Study 4
53.
An individual took an employment relationship problem to the Employment
Relations Authority. She had been given a pre-employment application
form which included the question:
“Do you have any medical problems of any kind?�
54.
The Authority held that the question was too wide and that its purpose
was not clear. It agreed that the employer was entitled to seek
relevant information so that it could comply with its health and safety
obligations but that it could not seek generic medical information.
The Authority concluded that the employer was within its rights to ask
for information that would effect the individual’s ability to perform
the specific role or effect the ability of any other employees [7] .
55.
The Human Rights Commission has also published a Pre-Employment
Guidelines brochure. The brochure notes that rather than employees
asking generic questions about an individual’s medical history,
individuals should be made aware of the requirements of the job, and
then asked whether they have any disabilities or medical conditions
that would prevent them performing to the required standards [8] .
56.
Some positions may require a medical examination, for example an
eyesight test. The Commission recommends that if this is the case, a
test should be restricted to short-listed candidates. Alternatively,
an employment offer can be made to the relevant individual, but made
subject to a satisfactory medical examination. Such a methodology
helps to prevent unlawful discrimination at the job interview and/or
re-employment application form stage, although it is preferable to have
an individual complete all the necessary steps prior to making an
appointment offer.
ACC
57. It is also
interesting to note that under the Injury Prevention Rehabilitation and
Compensation Act 2001, if an individual knowingly makes a false
statement or wilfully does or omits to do or say anything with the
purpose of misleading or attempting to mislead the Accident
Compensation Corporation in order to receive an entitlement, the
individual may be imprisoned for up to 3 months or fined up to $5,000.
58. So if an individual:
(a) Fails to disclose information about his/her medical history upon the ability to perform the role; and
(b) The purpose of the non disclosure is to obtain a future/existing ACC entitlement, it is an offence [9] .
59.
The Commission recommends that a question pertaining to medical history
or work related ACC claims (such as back strain or occupational overuse
syndrome) could be phrased as follows:
“Have you had
an injury or medical condition caused by gradual process, disease, or
infection – for example, hearing loss, sensitive to chemicals,
repetitive strain injuries – which the tasks of this job may
aggravate or contribute to?�
60. In some cases,
pre-employment application form questions regarding diseases will be
lawful. For instance, there are provisions under the Meat and Health
Regulations for the exclusion of individuals with certain diseases from
some jobs in the meat and food industries. Furthermore, as employers
are required pursuant to the Health and Safety and Employment Act to
ensure the safety of employees at work, safety will be an issue in some
jobs. Appropriate questions can be asked in pre-employment application
forms. For example, it would be lawful to establish a minimum blood
pressure requirement for pilots and/or a minimal visual ability for
transport drivers. It would also be lawful to require restaurant staff
to disclose a prior medical history of certain contagious diseases such
as hepatitis.
Criminal & Credit Checks
61. In
addition to questions pertaining to medical history, it is now becoming
more frequent for pre-employment application forms to also ask
questions or request checks in relation to criminal convictions and
credit status.
62. It is not currently unlawful to
collect information relating to criminal histories, nor to discriminate
on the basis of a criminal conviction.
63. Questions
relating to criminal history may be relevant to a position. For
example, it may be legitimate to ask an individual who is applying for
a Senior Accountancy position whether he/she has convictions for fraud
or dishonesty. An applicant for a job involving the care of children
may reasonably be asked about convictions for offences relating to
children. On 22 April 2002 new legislation came into force requiring
the police to vet non-teaching staff and contractors at schools,
kindergartens and childcare centres. Boards or manager of early
childhood services must obtain a policy check on new staff before
appointing them to jobs. Existing employees will also be checked in
order of regions, beginning with Southland and Wairarapa Schools.
64.
Care needs to be taken when considering the recency of the
convictions. Convictions twenty years or older might be considered
irrelevant to the vacant position [10] .
Reference/Referee Checks
65.
A third check category is reference/referee checks. A pre-employment
application form should list the referees that the employee authorises
the employer to contact. Once again it is important that the
individual is informed as to the purpose of the reference check, which
will usually be to confirm the individual’s ability to perform the
particular role. Reference checks should be completed by the actual
decision maker because the decision maker is far better informed as to
the dynamics of the working environment in which the individual is to
be placed. He/she is likely to ask the previous employer relevant
questions in relation to the individual’s suitability for the vacant
role.
66. Discussions with previous employers can be
highly revealing, not necessarily for what is said but because of the
manner in which messages are communicated.
67. When
seeking information from referees, employers should ascertain the basis
on which the information is being provided. Ideally, the referee
should confirm whether the information he/she provides on their
identity is to remain confidential. Employers should also confirm with
the referee whether or not they are happy for the individual to have
access to the reference comments.
68. A useful idea is to
have a reference check form which is completed whilst the employer
speaks to the referee. Another practical suggestion is for pre
employment applicant forms to contain an express provision signed by
the individual authorising the employer to contact referees, for
example:
“ I [insert name] authorise [insert employer’s
name] to contact the referees listed below to obtain confidential
verbal or written information about me in order to assess my
suitability for the role I am applying for. I understand that the
information received by [insert employer’s name] will be supplied in
confidence as evaluative material and will not be disclosed to me�.
69.
Taking these steps will also assist to enable the employer to withhold
the information should the individual subsequently request it. If the
information and/or the identity of the person who supplied it was given
under a promise of confidentiality and it is evaluative information
(i.e. it concerns the individual’s suitability for appointment to the
role), then pursuant to the Privacy Act, it can be withheld by the
employer.
70. Ideally, no offer of employment should be
made until all background checks (credit, criminal and reference) are
complete. It is much easier from a legal perspective to act on
pre-employment checks prior to the employment agreement taking effect.
While it is possible to make an offer of employment subject to
acceptable criminal, credit and reference checks, it is better that
processes are put in place to keep such interim offers to a minimum.
Where possible the entire letting process should be completed before an
offer is made.
71. If an interim offer must be made
because an appointment is urgent, then a conditional nature of the
offer should be clearly recorded in the letter of offer.
72.
In certain circumstances it can be very difficult for all checks to be
achieved before the offer is made. If that is the case, it is prudent
for the intended employment agreement to explicitly state that the
employer can terminate the employment in the event of unsatisfactory
information revealed by any of the checks. For instance, the first
paragraph of the employment agreement could read as follows:
“This
letter sets out your terms and conditions of employment. You should
read it carefully and clarify any issues with us. We encourage you to
obtain independent advice before accepting this offer.
This
offer is subject is the completion of the Application for Employment
form and any further checks as indicated in that form. You should be
aware that the employer reserves the right to withdraw this offer upon
receipt of any adverse information arising out of the checks. If you
have already accepted the offer and/or commenced working for the
employer by the time the results are supplied, you should be aware that
the employer reserves the right to terminate your employment in the
event of adverse information arising out of the checks.�
73.
It is standard practice for pre-employment application forms to contain
a similar provision. Such a clause would usually be worded as follows:
“I
certify that the information I have given in this pre-employment
application form is true and correct. I understand that if I have
given incorrect or misleading information, or if I have left out any
important information, I may not be considered for appointment, or if
appointed, my employment may be terminated.
Signed by:
Dated:�
III. INTERVIEWS
74.
It is common during interviews for the interviewer(s) to take notes for
discussion with other people involved in the appointment process. If
these notes are kept, and an individual seeks copies of them later,
they would generally be available for access to those individuals
notwithstanding that the notes present an incomplete picture of the
reason for taking a particular decision [11] .
75. From a
practical perspective, interviewers should be advised that their notes
may be collected and viewed by the individuals at a later date. So it
is important for interviewers to ensure that the written comments are
appropriate and comply with both the Human Rights Act and the Privacy
Act.
IV. APPOINTMENT - TRAINING
76. As with
advertising a vacant position and potential misrepresentation issue, it
is important that an employee’s position description, remuneration
hours etc are clearly spelt out in the intended employment agreement.
It is a legal requirement pursuant to the Employment Relations Act 2000
for prospective employees to be provided with a copy of the intended
employment agreement, or a copy of the applicable collective
agreement. Clarification of terms and conditions will also reduce the
likelihood of potential confusion about an employee’s position. It
is also useful to include an employer’s discretion to alter the job
description in order to ensure a degree of flexibility so that the
employer’s expectations and demands of the employee can change to
reflect changing business demands. This would not allow a complete
change of responsibilities, which would require the employee’s
consent.
77. In terms of the employee’s performance, in
order to ensure that the employee is acutely aware of the employer’s
expectations, it is important that performance objectives and key
performance indicators are clearly spelt out. That will achieve two
things:
(a) Both parties will have identical expectations; and
(b)
If performance management issues arise in the future, there are clear
benchmarks in order to measure and assess the employee’s performance.
78.
Probationary periods provide employers with an opportunity to monitor
and assess an employee’s performance at the beginning of an
employment relationship in order to determine whether the recruitment
process has in fact been successful (from both parties’
perspectives). Employers need to be aware however that a probationary
period does not provide an automatic right to terminate in the event
the employee’s performance is unsatisfactory.
79.
Terminations within a probationary period must still adhere to the well
established principles of substantive and procedural justification.
Essentially, there must be a valid reason for the termination, and it
must be carried out in a procedurally correct manner, including
notifying the employee of the employer’s concerns, hearing the
employer’s explanations and offering assistance where appropriate.
Employers should also ensure that all employees are thoroughly familiar
with any policies particularly health and safety policies and employee
assistance programmes.
CONCLUSION
Like any
aspect of the employment relationship, recruitment requires care and
attention to ensure that it is carried out not only successfully (in
terms of appointing the right candidate) but also legally in terms of
the rights and obligations of both parties. Legal advice should be
sought if an employee has any concerns about the recruitment process.
It is better to be prepared and approach recruitment from an informed
perspective rather than seek advice after mistakes have been made.
[1]
Managing Human Resources – a central bank perspective, D. Hickey and
G. Mortlock, Reserve Bank of New Zealand, Bulletin Vol. 65 No. 1.
[2] Alton Lee v Victoria University of Wellington [2000] 2 ERNZ 152, Goddard CJ
[3] Advertising Guidelines, Human Rights Commission, www.hrc.co.nz
[4] Human Rights Commission v Eric Sides Motor Co Ltd [1984] EOC
