Com­pen­sa­tion de­spite CV blem­ishes

It’s a mis­take to as­sume that there’s no em­ploy­ment re­la­tion­ship un­til a new staff mem­ber ac­tu­ally starts work.

Marlborough Express - - BUSINESS - SUSAN HORNSBY-GELUK

OPIN­ION: The Em­ploy­ment Re­la­tions Au­thor­ity re­cently awarded more than $7500 to a woman (‘‘P’’) who was dis­missed from the Nel­son skin clinic En­hance­skin be­fore she even started work­ing.

P ap­plied for an ad­min­is­tra­tion role with En­hance­skin in 2015. Fol­low­ing two in­ter­views and an on­line test, P be­came the pre­ferred can­di­date and was asked to com­plete an on­line po­lice check, which she did.

P was then made an of­fer of em­ploy­ment and was pro­vided with a draft em­ploy­ment agree­ment. But when she vis­ited the clinic to sign it, P was recog­nised by the re­cep­tion­ist. She ap­proached the clinic’s owner and told him she be­lieved there had been an is­sue with the woman’s pre­vi­ous em­ploy­ment at a preschool, which in­volved cash go­ing miss­ing and crim­i­nal charges be­ing laid.

There was some truth to this con­cern as P had re­signed from a pre-school af­ter theft al­le­ga­tions were raised against her. But although she was charged, the case was dis­missed in the district court for lack of ev­i­dence.

The clinic owner ap­proached the own­ers of the pre-school who con­firmed that there had been is­sues dur­ing the em­ploy­ment re­la­tion­ship. When he checked P’s CV, he also dis­cov­ered that her em­ploy­ment with the pre-school had been omit­ted.

The clinic owner then con­tacted the re­cruit­ment com­pany which had han­dled the hir­ing process and said he could not em­ploy P. He was told by the agency that they would han­dle it.

Af­ter ini­tially ad­vis­ing P that the clinic had de­cided it needed a reg­is­tered nurse, the agency then in­formed her that the of­fer had been with­drawn as the clinic had learned of the theft claims.

Ag­grieved, P took a claim in the Em­ploy­ment Re­la­tions Au­thor­ity al­leg­ing that she had been un­jus­ti­fi­ably dis­missed.

The clinic de­fended the with­drawal of the of­fer on the ba­sis that P had not been up­front about her work his­tory. How­ever, the au­thor­ity agreed with P that she had been un­jus­ti­fi­ably dis­missed as the em­ployer could not just with­draw the of­fer of em­ploy­ment once it had been ac­cepted, and it did not fol­low any fair process be­fore reach­ing its de­ci­sion to dis­miss.

The au­thor­ity did not con­sider P to be com­pletely blame­less, though, and de­cided that the omis­sion from her CV of her time with the pre-school war­ranted a 25 per cent re­duc­tion in the remedies she was awarded. But she still came away with an award of $6000 com­pen­sa­tion and $1684.80 for lost wages.

This case high­lights a com­mon, and costly, mis­con­cep­tion for em­ploy­ers which is that there is no em­ploy­ment re­la­tion­ship un­til an em­ployee starts work and that they can es­sen­tially ter­mi­nate at will at any point be­fore the start date.

The re­al­ity is that once a prospec­tive em­ployee has been of­fered and ac­cepted em­ploy­ment, they have all the same pro­tec­tions at law as an em­ployee who is work­ing.

This in­cludes pro­tec­tion against ter­mi­na­tion with­out cause and the right to a fair process be­fore the em­ployer makes a de­ci­sion to dis­miss.

The sit­u­a­tion would have been dif­fer­ent if the of­fer of em­ploy­ment had not been ac­cepted, and the em­ploy­ment agree­ment had not been signed, at the point when the clinic learned about P’s is­sues at the pre-school.

In that sce­nario, the clinic would have been within its rights to re­voke the of­fer of em­ploy­ment with­out fol­low­ing any due process. P would then have had lit­tle re­course.

It is im­por­tant that em­ploy­ers, or re­cruiters where they are vet­ting job ap­pli­cants on be­half of

Even the most thor­ough due dili­gence may not iden­tify all the po­ten­tial skele­tons in a job ap­pli­cant’s clos­est.

the em­ployer, are thor­ough in ask­ing the right ques­tions. This may in­clude ask­ing an em­ployee about any per­ceived gaps in their CV.

How­ever, even the most thor­ough due dili­gence may not iden­tify all the po­ten­tial skele­tons in a job ap­pli­cant’s clos­est. To pro­tect against th­ese sit­u­a­tions, em­ploy­ers would be well-ad­vised to in­clude clauses in their em­ploy­ment agree­ments which deal with sit­u­a­tions where an em­ployee has failed to dis­close rel­e­vant in­for­ma­tion.

If damn­ing in­for­ma­tion later comes to light, a fair process then needs to be fol­lowed.

An award of more than $7500 to an em­ployee who never ac­tu­ally started work with the em­ployer may seem high and even tough on the em­ployer.

How­ever, it is a re­flec­tion of what the law ex­pects of em­ploy­ers in sit­u­a­tions such as this and the costly con­se­quences of fall­ing short of that ex­pec­ta­tion.

PHOTO: 123RF

Watch out for a CV which has un­der­gone a makeover.

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