Interviews for employment are problematic. The employee wants to impress; often the employer wants to impress too. All too often the hard questions are not asked. There is a chance for the employer to recover through reference checking. All sorts of other checks are available; police checks, medical checks, psychometric testing. Some minor criminal convictions do not need to be disclosed if prospective employees meet the requirements of the Criminal Records (Clean Slate) Act.
But there is no general duty on job seekers to reveal potentially relevant material about themselves voluntarily. It is only if the employer has asked, and the potential employee has chosen to answer, that the answer must be honest and full. So for good measure, the employer will often throw in a clause about representations (and non-disclosure of relevant information) in the employment agreement.
A recent decision of the Employment Court shows that the ”representation and disclosure” clause in the employment agreement, may not offer the protection the employer thinks.
Brendan Ford was employed by a small, family owned construction company, Henry Brown and Company Limited. It’s sole director, Mr Brown, was scheduled to undergo surgery. Mr Brown and his wife, Ms Muir, advertised a project management role and Mr Ford was one of eight people who applied. Ms Muir took the lead in terms of the recruitment process. Her evidence was that during the interview process she twice rang Mr Ford and on both occasions Mr Ford advised that he had left his previous employment because of relationship issues with the area manager and health and safety concerns. Mr Ford disputed that and said the questions centred on his “fit” for a small, family owned company and that his conversations with Ms Muir, and later Mr Brown, were very informal and relaxed.
Mr Ford provided the names of some referees when asked. One of the referees contacted had been a colleague of Mr Ford’s but was not Mr Ford’s manager. The referee also told Mr Brown that Mr Ford left the company because of “issues with the general manager” and “health and safety”. Ms Muir also telephoned a referee and her notes record that Mr Ford had received a “glowing report”. The company was satisfied with the references and offered Mr Ford employment.
Their employment agreement contained a standard clause relating to representations:
In appointing you we have relied on your representations as to your qualifications and experience. You confirm that those representations are true and correct and that you have disclosed everything, which if disclosed, may have been material to our decision to employ you. You also acknowledge that we may take disciplinary action against you, including dismissal, if your representations were misleading or incorrect.
It was not long before issues began to arise, both from Mr Ford’s and the company’s perspective. Mr Ford emailed Mr Brown and Ms Muir advising that he was notifying a personal grievance in respect of the company’s approach to health and safety issues. A further grievance of bullying was raised later by him.
From the company’s perspective, they were concerned about Mr Ford’s behaviour and the manner in which he was interacting with staff, themselves, subcontractors and clients. They tried again to contact Mr Ford’s referee. They were told that the referee no longer worked at Mr Ford’s previous employer and the previous employer said that Mr Ford had been fired and that the company would be better off without him.
The company dismissed Mr Ford saying he had misrepresented himself when applying for the role and was in breach of the “representation” clause in his employment agreement.
The Employment Relations Authority determined that Mr Ford was justifiably dismissed. It said that the clause required Mr Ford to disclose how his employment ended with his previous employer.
The Chief Judge in the Employment Court disagreed and considered that Mr Ford had been unjustifiably dismissed. The Chief Judge commented on the clause saying “How would a prospective employee know what “may” be regarded as relevant to the employer and accordingly what they had to disclose? What of information that an employer is not lawfully permitted to ask about or rely on when making hiring decisions, but which the employer might regard as relevant? Would family commitments, health issues, an historic criminal conviction be relevant?”
All too often employees try to fudge why they have left a previous role. They do not have a duty to say why they are no longer in that role. It is the potential employer that must drill down and ask the hard questions. The onus now sits more firmly on the employer to do its due diligence properly before employing a new employee. Read more...