Nelson Mail

Compensati­on despite CV blemishes

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P that the clinic had decided it needed a registered nurse, the agency then informed her that the offer had been withdrawn as the clinic had learned of the theft claims.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

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

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.
PHOTO: 123RF Watch out for a CV which has undergone a makeover.
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