A critical lesson from the Quakers Hill Nursing Home disaster is to conduct adequate pre-employment screening and check references on new employees.
These principles may also be applied to conducting adequate background checks and checking references on independent contractors such as agency staff, volunteers and potential residents.
Pre-employment screening can include any, or all, of the following:
- Applicant interviews;
- Tests to confirm general ability, aptitude and personality;
- Medical checks; and
- Reference and background checks.
A range of pre-employment screening processes should be adopted as part of any comprehensive recruitment procedure and ideally should include the following steps:
- An initial interview between the recruiter (internal and external) and the line manager to understand the role and capabilities required;
- Short listing of candidates by the recruiter and the line manager – based on the resumes received;
- Reference checks – this should be done once the candidate is chosen, but prior to any offer being made;
- Qualification check – documentary evidence can be used to verify qualifications and accreditations quickly;
- Phone screening to assess basic capabilities, propensity to move, salary expectations, etc.;
- One (possibly two) competency based interviews by the line manager and HR;
- Group assessment centre, if appropriate (e.g. using case studies, presentations etc.);
- Online testing, if appropriate (for example verbal reasoning, analytical skills, etc.);
- Medical assessment;
- Background checks such as police/criminal checks, credit history and litigious conduct and working with children checks if direct contact with children is involved;
- Mandatory requirements - some jobs require mandatory checks specific to that role. However, nearly all jobs will require an employer to ensure that a job applicant has a legal right to work in Australia; and
- ASIC Register - a quick search of the ASIC Register will disclose whether someone has been deemed a banned/disqualified person in terms of Board appointments.
There are a range of benefits arising from pre-employment screening, for example:
- A better informed employer is more likely to select a candidate who is a good fit for the role and the organisation;
- Unfortunately dishonesty in job applications is rife, therefore screening increases the likelihood that this will be uncovered;
- The overall cost of hiring may be reduced, despite the costs involved in the screening process, because the chances of a (costly) incorrect hiring decision are minimised; and
- Any restrictions on a candidate’s ability to perform his or her role, whether due to insufficient skills or other limitations, are more likely to be made known to the employer before the decision is made.
Importantly the screening process must comply with Australian Privacy Principles, anti-discrimination legislation and other laws.
Complying with anti-discrimination laws
Legislation at both the federal and state level offers protection to applicants for employment who are treated less favourably than other applicants because of a ground or attribute protected under anti-discrimination legislation.
The grounds on which it is unlawful to discriminate against a person vary across jurisdictions, but include race, sex, marital status, age, transgender, non-specific gender and disability.
By revealing information in relation to attributes protected under anti-discrimination laws, the screening of job applicants can expose an employer to a claim alleging breach of those laws. To avoid such a claim, employers should not conduct any screening which would reveal information concerning protected attributes. If employers regard the screening process information as essential to their recruitment decision-making, they should ensure that such information has a clear connection to the inherent requirements of the position.
Where the discovery of a criminal record results in a person being discriminated against because of that record (including circumstances where a job applicant is refused employment where a criminal record is revealed), an employer may leave itself open to discrimination claims.
An exception arises where the conviction in question would impact directly on the job. However, it must be noted that some state-specific variations do arise in state anti-discrimination statutes such as in Tasmania and the Northern Territory.
The Australian Human Rights Commission has developed a set of guidelines that can provide assistance to employers in navigating their way around this issue. The same applies to a dismissal for discovery of a conviction. However, where an employee has misrepresented himself or herself during the recruitment process, there may be cause for termination.
Obtaining consent from the applicant prior to conducting inquiries
Consent from the candidate should be obtained prior to conducting any searches. This might be included on an application form or requested following an interview.
Complying with privacy laws
The Commonwealth Privacy Act 1988 (Cth) (the Privacy Act) (which applies to the private sector and the Commonwealth public sector) and relevant State privacy legislation, such as the Privacy and Personal Information Protection Act 1988 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) (which applies to the public and private sector in NSW) regulate the collection, use and disclosure of personal information.
Currently, under the Privacy Act, 'personal information' excludes an 'employee record', however, there are some proposals to change this in the future.
An 'employee record', in relation to an employee, is defined to mean 'a record of personal information relating to the employment of the employee'. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following:
- The engagement, training, disciplining or resignation of the employee;
- The termination of the employment of the employee;
- The terms and conditions of the employment of the employee;
- The employee’s personal and emergency contact details;
- The employee’s performance or conduct;
- The Employee’s hours of employment;
- The employee’s salary or wages;
- The employee’s membership of a professional or trade association;
- The employee’s trade union membership;
- The employee’s recreation, long service, sick, personal, maternity, paternity or other leave;
- The employee’s taxation, banking or superannuation affairs.
It is important to note that information concerning pre-employment discussions and screening will be excluded from the above definition if the candidate is unsuccessful in their employment application.
There may also be obligations of confidentiality of employment-related records. An obligation of confidence can arise in contract or in equity. An equitable obligation of confidence can arise where information with the necessary quality of confidence is imparted in circumstances importing an obligation of confidence*.
- Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 443
- Smith Kline & Freich Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73, 86-87
To enable you to obtain the background information from third parties, we recommend that you request the consent of the applicant for the disclosure of their personal information as part of the application process.
If you receive a request for information about a current or former employee, you should request the consent of that employee to make the disclosure before disclosing the material.
What do you do if you receive unfavourable information?
In the event that you receive information that gives you any reason for concern, it is advisable to discuss its relevance to that role and/or if necessary, your potential liability in the event that you need to refuse an applicant for employment based on same with your lawyer.
It is clear from the above that although pre-employment screening has a worthwhile role to play, it also exposes employers to potential risks. These risks need to be understood and managed if an employer is to minimise the likelihood of a claim.
Dealing with criminal convictions
Some criminal convictions are relevant to the terms of employment (such as fraud or assault) and some aren’t. Some convictions are “spent”, for example if they are quashed (set aside by a court) or pardoned or when the relevant crime free period has expired. In New South Wales, minor convictions can be spent after 10 years, subject to certain conditions being met (see Criminal Records Act 1991 Part 2). Individuals are not required to disclose spent convictions.
Risks with giving a reference and defamation
There is no obligation to agree to provide a reference. In giving a reference you need to ensure that the reference is accurate and not misleading or deceptive. Care should also be taken to ensure that the reference is not defamatory.
A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:
- Disparaging him or her;
- Causing others to shun or avoid him or her; or
- Subjecting him or her to hatred, ridicule or contempt.
There is a defence of qualified privilege (under State Defamation Acts, for example, Section 30 of the Defamation Act 2005 (NSW) if there is no malice and:
- The recipient has an interest or apparent interest in having information on some subject, and
- The matter is published to the recipient in the course of giving to the recipient information on that subject, and
- The conduct of the defendant in publishing that matter is reasonable in the circumstances.
Australian Health Practitioner Regulation Agency
The registration of clinicians such as medical practitioners and nurses can be checked against the register operated by the Australian Health Practitioner Regulation Agency (AHPRA). In addition, inquiries can be made of AHPRA as to whether or not a registered health practitioner has conditions on their registration or is suffering from an impairment.
What is the NSW Service Check Register?
NSW Health maintains a Service Check Register (SCR) under NSW Health Policy Directive PD2013_036. There are mandatory requirements in relation to the creation, maintenance and deletion of records on the SCR for NSW Health.
Only staff authorised by the Chief Executive or delegate may be given access to the SCR. Under section 115 of the Health Services Act 1997 (NSW) (the Health Services Act) the NSW Health Service consists of those persons who are employed under the relevant Part of that Act by the Government of New South Wales in the service of the Crown. As there is the one employer, the information may be shared.
In 2014, the Health Services Act was amended by the Health Practitioner Regulation Legislation Amendment Act 2014 (NSW) to include sections 58A and 133C although these amendments have not yet been proclaimed to commence at the time of writing this article.
Section 133C of the Health Service Act allows a public health organisation to share or exchange appointment information about a health practitioner with a private health facility licensee (registered under the Private Health Facilities Act 2007 (NSW)) if the public health organisation:
- Reasonably believes that the health practitioner practises at the private health facility; and
- Reasonably considers that the disclosure of that information to the licensee is necessary because it raises serious concerns about the safety of patients.
Information is “appointment information” about a health practitioner for the purposes of this section if:
- The health practitioner practises (or formerly practised) at a hospital or health institution of the public health organisation (whether under a service contract or otherwise); and
- The information relates to the variation, suspension or termination by the public health organisation of clinical privileges of the health practitioner.
The disclosure of appointment information about a health practitioner by a public health organisation (or a person acting at the direction of the organisation) to a private health facility licensee does not, if the disclosure was made in good faith, subject the organisation or person personally to any action, liability, claim or demand.
Section 58A enables a private health facility licensee to share or exchange appointment information about a health practitioner with another licensee or a public health organisation if the licensee:
Reasonably believes that the health practitioner practises at the private health facility of the other licensee or at a hospital or health institution of the public health organisation; and
Reasonably considers that the disclosure of that information to the other licensee or public health organisation is necessary because it raises serious concerns about the safety of patients.
Information is “appointment information” about a health practitioner for the purposes of this section if:
- The health practitioner practises (or formerly practised) at the private health facility of the licensee (whether under a service contract or otherwise); and
- The information relates to the variation, suspension or termination by the licensee of clinical privileges of the health practitioner.
The disclosure of appointment information about a health practitioner by a licensee (or a person acting at the direction of the organisation) to another licensee or a public health organisation does not, if the disclosure was made in good faith, subject the licensee or person personally to any action, liability, claim or demand.
It would be preferable if these provisions were extended to disclosure to other health care employers, including interstate hospitals, aged care, community care and primary health care.
It is important to include in contracts an obligation upon the employee to disclose certain matters during the course of employment, including loss of registration, conditions upon registration and criminal investigations and convictions.
Section 176BA of the Health Practitioner Regulation National Law (NSW) introduced by the Health Practitioner Regulation Legislation Amendment Act 2014, will, upon its commencement, enable the Council to notify employers and accreditors about conditions concerning the health, conduct or performance of health practitioners in New South Wales.