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:
FIVE DO's:
✓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 tiumeframeis 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.
FIVE DON'Ts
✕ 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 [2006]
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
preemployment conduct.
In the decision of Moss v. Lowe Hunt & Partners Pty Ltd
[2010] 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 [63]:
"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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.