Article by Martin Osborne and Kate Cook
The utility of pre-employment questionnaires
On 6 February 2009, the Administrative Appeals Tribunal affirmed Comcare's decision to deny compensation to an employee who claimed that prolonged periods of sitting in an inappropriate ergonomic setting in the workplace had caused her to suffer from a "significant" disc protrusion. The Tribunal found that the employee's injury had not been caused or aggravated by her work.
One of the factors the Tribunal took into account in making its finding on the evidence was the fact that the employee had falsely completed a pre-employment questionnaire, by denying that she had previously suffered from back pain.
The decision highlights the useful role that pre-employment questionnaires can play in the recruitment process.
The facts and decision
The employee was 22 years of age when she commenced with Centrelink in 2004 as a customer service operator. Shortly after that, she complained of 'work-related back pain'. Adjustments were made to her workstation, but the pain returned, and continued into 2005. Between 2004 and 2006 the employee also suffered from gynaecological complications associated with pregnancy and abdominal pain, which she had experienced since 2003. Between 2004 and 2006, she was absent from work for significant periods of time.
In June 2006, she was diagnosed as having a significant disc protrusion.
On her pre-employment questionnaire, she answered "no" to the question, "Do you, or have you ever had...back or neck pain or injury, nervous or mental condition, anxiety or stress reaction or depression, migraine or frequent headaches and abdominal pain or bowel disorder?" In the course of the trial, she acknowledged that she had in fact had prior back pain, a nervous or mental condition, migraines and abdominal pain. She argued that she had misunderstood the question's syntax.
Her case was that her back pain prior to commencing employment was associated with gynaecological abnormalities, but that the back pain subsequent to commencing employment with Centrelink was aggravated by, if not partly caused by, her employment.
Senior Member John Handley, in dismissing the appeal, found that:
- the employee had falsely answered the questionnaire – "she clearly understood what was being asked of her"; and
- the injury was likely caused by a degenerative disease or strenuous physical activity, and had not been aggravated by the employee's work at Centrelink.
Lessons for employers
The focus of this article is on the lessons from the case in respect of pre-employment questionnaires –this is covered in more detail below.
Another lesson from this case is that employers should attend to their employees' OHS complaints. Throughout her employment, the employee's Centrelink supervisors had continued to attend to her complaints by organising workstation assessments and adjusting her workstation to better accommodate her health. This behaviour led to Senior Member Handley finding that "it would appear that the applicant's complaints of poor furniture were acknowledged by appropriately qualified occupational health and safety officers. "This case might have had a different outcome, had her complaints fallen on deaf ears".
The benefits of pre-employment questionnaires
In this case, Centrelink benefited from its policy of conducting pre-employment questionnaires: the fact that the employee had lied in the questionnaire about her pre-existing back problems went to the credibility of her testimony and her case.
First and foremost though, a pre-employment questionnaire is of assistance in determining whether an applicant will be able to perform the essential requirements of the job. It can also indicate whether employing the applicant would impose unreasonable hardship on the employer, and assist an employer in meeting its duty of care to the potential employee, co-workers and the public.
False statements in pre-employment questionnaires may also mean that an employer has justification for terminating an employee's employment. In such cases, the employer must be careful to consider whether the dishonesty is serious enough to warrant dismissal. For example, in a role where honesty is essential to the employee performing the role, then an employee's dishonesty may impair their capacity to perform that role.
Conducting pre-employment questionnaires opens up an employer to equal opportunity claims, due to the risk of contravening federal or state legislation discrimination laws. If a candidate is denied employment directly or indirectly on the grounds of physical or mental characteristics or impairments, that may constitute a breach of equal opportunity laws (subject to available exemptions).
Pre-employment questionnaires – hints and tips
There must be a connection between the information sought in the questionnaire and the key requirements of the job. If there is no connection, then the employer may be found to be breaching equal opportunity laws.
If you do use pre-employment questionnaires, consider the following:
- Drafting the questionnaire in a way which shows a connection between the information sought and the essential requirements of the job.
- Evaluating ALL candidates against the essential requirements of the job.
- Remembering that all circumstances of an individual should be taken into account when considering their application1.
- Be careful not to make assumptions about what a candidate is capable of doing (or not doing) and consider whether adjustments to the workplace would obviate the difficulty. Avoid using health questionnaires as part of the pre-interview culling process.
- If the work environment could be adjusted to accommodate the worker, the question is: would making those adjustments be an unjustifiable hardship for the employer?
This list is not exhaustive. You may wish to seek legal assistance in drafting your pre-employment questionnaires, to best ensure that it is compliant with equal opportunity laws.
1 For example, Gehrig v McArthur River Mining Pty Ltd (1997) EOC 92-872 was a case in which a mining company denied a nursing job to an employee based on a pre-employment medical. The Equal Opportunity Commission found that the company failed to adequately consider the complainant's immediate past employment as a nurse on the relevant mine.
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.