WHY THESE PROCESSES ARE SO IMPORTANT
When employers are faced with an unfair dismissal claim, many wonder how they could have avoided the problem.
There are often many reasons why a dismissal claim has arisen however; reasons that are often overlooked are poor recruitment and induction processes.
The key objective in the recruitment process is to get the best person for the job matched against the selection criteria and other behavioural and attitudinal assessments. Once a person has been selected, the next step is ensuring that he or she is inducted properly into the organisation.
To reduce the risk of unfair dismissal claims, it is recommended that employers consider the following steps.
JOB DESIGN AND EVALUATION
Before commencing the recruitment process, the employer must determine what the requirements are for the position that is to be filled. This is known as job design. Job design takes on greater significance if the position to be filled is a new position within the organisation. However, in any event, any requirement to fill a position provides the employer with the opportunity to reconfirm the requirements of the position.
Once this has been done the employer needs to evaluate the position to attach an appropriate level of remuneration to it. In most cases the employer will be guided by an award or an enterprise agreement, which stipulates the classifications of employees and the wage or salary to be paid.
As organisations change so do the requirements of positions within the organisation therefore giving rise to a continuous process of job design and evaluation.
Once the employer has determined what is required, the employer is in a position to advertise the position. However, when advertising and interviewing applicants, care should be taken to ensure compliance with section 53 of the Trade Practices Act 1974 and section 18 of the Fair Trading Act 1990. These provisions prohibit the making of false or misleading statements to applicants as to the availability, nature, terms and conditions or any other matter relating to employment.
As a result, there is a clear onus placed upon the employer to ensure that any and all representations made to prospective employees are accurate and not misleading (even if they are not intended to be misleading). Advertising aimed at attracting desirable applicants in the hope that they might accept lower pay or less attractive conditions would amount to a false representation of the quality or benefits of the position.
Failure to comply with the above provisions may result in large pecuniary penalties and, more significantly, bad publicity and damage to reputation.
Employers must be aware of the Anti-Discrimination Act 1998 and its effect on recruitment practice and the treatment of employees during the course of their employment. This is particularly important with regard to recruitment, because by its very nature, employers have to select one candidate over another. There are acceptable (e.g. experience and qualifications) and unacceptable (e.g. race) bases upon which an employers may select a candidate. Therefore, it is essential that employers understand these requirements under this legislation.
When interviewing applicants for employment, employers should be mindful of the requirements under the Trade Practices Act 1974 and the Tasmanian Fair Trading Act 1990 and the Anti-Discrimination Act 1998, discussed above.
In the recruitment process, the interview is integral in determining an applicant’s suitability for the job. All too often, employers say ‘but we did not pick it up (the problem) at the interview’. In many cases this is because the interview was not rigorous enough. Employers should consider assessing an applicant’s competency in an interview by setting a task to be performed related to the selection criteria.
Furthermore, for some more senior positions, a follow up interview together with demonstration of competency should be considered.
Policy manuals are invaluable documents as they inform both the prospective and existing employees about the organisation’s policies and procedures, and the expectations of the employer and the rights of employees.
Policy manuals become critical should there be a dispute arising out of the employment contract. A policy manual that is provided to new employees in induction greatly assists the new employee in identifying what is expected of them in the employment relationship and the terms and conditions of their employment, over and above those expressly stated in writing.
Therefore, policy manuals must regularly be reviewed and updated. Any changes made to the manual must be communicated to all employees as soon as possible.
Prior to engaging any employee, it is essential to undertake checks of the referees provided. Serious thought should be given to the questions asked of a referee prior to any contact.
However, prospective employers should be aware that past employers may be cautious about what information they provide about past employees. In a recent court action, a past employer was sued by an existing employer over information supplied about an employee who did not perform and caused the employer to incur a loss.
OFFER OF EMPLOYMENT
An offer of employment will often be communicated verbally and then followed up in writing. To avoid confusion at a later date it, is important that when the verbal offer is made, the employer makes it clear that he or she is merely verbally communicating that the applicant has been successful and that the terms and conditions of the offer will be conveyed to them in writing.
All employees should have a written employment contract or letter of appointment.
Once and employee has been selected the induction process should begin.
A thorough and comprehensive induction process will allow employees to familiarise themselves with the workplace environment, culture, policies and procedures and what is expected of them regarding their performance and conduct.
Given the laws pertaining to the employment relationship such as anti-discrimination, occupational health and safety, unfair dismissal and workers compensation and the penalties that apply for breaches of these laws, employers are strongly advised to have comprehensive policy and procedures for induction.