Many employers do not have a systemic approach to the hiring of employees. They merely lodge a poorly worded advertisement, select an employee and allow the documentation to catch up on that process.

As a result, many employers:

• are unable to properly reference check prospective employees;
• loose the benefit of setting up appropriate terms and conditions of employment;
• do not have effective probationary periods in place;
• do not manage their occupational health & safety obligations, by ensuring employees are fit for the job;
• cannot achieve effective workplace flexibility;
• expose themselves to discrimination claims by unsuccessful applicants; and
• expose themselves to common law and Trade Practices Act damages claims as the promises made in the advertisements or at interview are misunderstood or were not properly documented.

It is very important for employers to adopt a systemic approach to hiring new staff. The following is a series of recommended steps that an employer should consider putting into place when hiring employees. Some employers may wish to add steps or divide the suggested steps into several new steps.

Step 1: Create an appropriate job application form.

The use of such forms will ensure that the organisation asks the same questions of each prospective employee and also conducts an appropriate investigation into their skills and abilities. The Form should also entitle the organisation to conduct reference checks. This may be particularly important where the proposed employment deals with children or adults at risk.

The Form should also raise issues relating to the prospective employee’s health, but in such a manner that anti-discrimination laws are not breached.

Step 2: Consider the nature of the position proposed to be filled.

If it is a new position, what are the current elements of work to be undertaken? Will they change in the next 12 months? What skills are required? What reporting structure will there be?

What level of remuneration applies? Does the position fall within the ambit of an Award or an Enterprise Agreement? If so, then the remuneration structures created by those instruments will apply.

If it is a current position, should the content of the position be altered? Should the reporting structure change? Are there additional responsibilities to include in the new position?

Should the remuneration remain the same? If the position falls within the ambit of an Award or an Enterprise Agreement? then the remuneration structures created by those instruments should be re-checked, especially if any aspects of the new position description are varied from that of the current position.

Who should be consulted within the organisation before the position is finalised?

Step 3: Create a “Position Description”.

Position descriptions should include the job tasks to be undertaken, the reporting structures that apply, levels of performance required. They may include time lines for various projects or undertakings.

Position descriptions should not be limited to mere tasks. They should also include a list of critical behaviours to be used in performing the duties. These may include such matters as “ability to communicate”, ability to work in a team environment”.

Step 4: Consider the category of employee sought.

Does the employer require a full time, a part-time or a casual employee?

Step 5:

Now that a decision has been made about the position, consider generally the application of any Award or enterprise agreement to the position. An Award will overrule any inconsistent provisions in an employment contract that do not create a greater benefit for the employee. Enterprise Agreements have the same effect.

Step 6: Create a letter of offer of employment or Contract of Employment for the position.

The chosen document should reflect each of the matters referred to in the above steps and all other contractual terms and conditions.

Step 7: Create an advertisement for the position.

The advertisement should be consistent with the position description and the terms and conditions of employment.

The advertisement must comply with Anti-discrimination laws, particularly those relating to sex, race and disability discrimination. Discrimination can be direct or indirect. For example, “attractive females only should apply” is clearly and directly discriminatory. However, what about an advertisement requiring “all applicants to be over 1.6m tall? There have been cases which have decided that such statements are indirect discrimination, as while 80% of men are over that height, 80% of women and a similar percentage of Asians and Indians are not.

The advertisement must also comply with the Trade Practices Act (Cth) in that the advertisment must not be false or misleading. Employers can later be liable for those misleading statements and can be bound by them.

Step 8: Create a system for culling those applications.

It may be appropriate to have a spread sheet, with columns for each specific requirement of the position. A written statements of requirements should also be prepared for those cases in which culling is undertaken by more than one person.

Unsuccessful applicants should quickly receive letters thanking them for their application but advising of their lack of success. This may have positive public relations implications, but will also save wasted time in answering telephone inquiries from applicants.

The culling system must also comply with Anti-discrimination laws.

A letter to short listed applicants should be sent, confirming the time, date, location of formal interviews, and where possible the constitution of the selection panel.

Step 9: Short list the four or five most successful applicants.

Complete reference checks at this time. Consider a medical assessment, based on ability to perform the tasks in the position description. Ideally, an experienced OHS medical practitioner should be retained, who is familiar with the organisation’s operations. Medical assessment may occur after the interviews has occurred (Step ten) or after an offer is made (Step 11).

At this point it is important to have a selection panel in place. Appropriate training for the selection panel should occur. This may include:

• compliance with Anti-discrimination laws, to ensure prohibited questions are not asked; and
• discussion to ensure that only questions relevant to the position are asked.

It should be in the forefront of the selection panel’s mind that they are seeking the “best person for the job”. The person with the best mix of skills and experience, as well as critical abilities should be chosen.

Step 10: Interview the four or five short listed candidates, preferably on the same day.

Before each interview occurs, the candidates should be shown the position description and the proposed letter of offer or formal Contract of Employment. This will ensure prior awareness of contractual obligations (especially if restraints of trade and confidentiality issues are involved) and may provoke discussion at the interview.

Never make an offer at interview, as it will exclude other candidates before the selection process is complete. Also, if the offer is verbally accepted, some of the terms and conditions set out in the letter of offer / formal Contract of Employment may be excluded.

The employer may be open to the allegation of a breach of the duty to comply with Anti-discrimination laws

Step 11: Make the offer.

At this time, the organisation should make the offer either by letter of offer or formal Contract of Employment. In this way, the terms and conditions of employment are clearly stated and the successful candidate must accept by signing and returning the documents by a specified date.

Step 12: Keep track of the offer.

For a number of reasons, successful candidates do not always accept offers of employment. If the offer is not accepted, the organisation can place pressure on the candidate to make a decision or it can withdraw the offer and re-issue it to the second most successful candidate. In this way, the advertising, culling and interview processes are not lost.

Step 13: Ensure that the successful candidate signs the letter of offer or formal Contract of Employment before commencing work.

Even though this requirement is set out in the letter of offer, many employers forget to ensure this step is taken, thereby exposing themselves to the argument that the terms and conditions contained in the document is post-contractual and therefore not binding.

Step 14:

Consider whether the Contract of employment be registered as an Australian Workplace Agreement.

Step 15:

Ensure that the employee receives appropriate induction training. In particular, there should be occupational health & safety training relevant to the organisation and the position, as well as detailed explanation of the organisation’s anti-discrimination and anti-sexual harassment arrangements.

Step 16:

Ensure that the employee’s performance is monitored throughout the probation period.

FURTHER INFORMATION

This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover, motor vehicle accident, personal injuries), anti-discrimination & harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.