Exposing the embroiderers

If you've ever been stung by a new employee whose Java or Oracle skills didn't stack up despite claims of years of high-level work at Fortune 500 firms, you'll be feeling at least a little sorry for the bosses of Maori TV at the moment.

If you've ever been stung by a new employee whose Java or Oracle skills didn't stack up despite claims of years of high-level work at Fortune 500 firms, you'll be feeling at least a little sorry for the bosses of Maori TV at the moment.

But the John Davys of the world aside, do you have any comeback if your new worker has told a few porkies in their references or at interview? Even more pertinent, if a recruiter handled the process, does you have any comeback against the agency?

Sadly it appears the law is not clear-cut.

“It’s quite a grey area,” admits Auckland barrister and employment and IT&T specialist Chris Patterson. “The best thing that employers can do is when they are interviewing and recruiting someone, at the point they make an offer they should expressly make it clear that the employer is relying on statements by the employee. [And that] if any of the statements are found to be misleading, incorrect or false, the employee may be summarily dismissed."

If they agree, he says, and a statement is subsequently found to be incorrect, the next issue is whether the statement is material. For example, if someone says they regularly played golf and were found not to, that is unlikely to be sufficient grounds. But if someone says they were a securities commissioner in Canada, “it’s highly likely that would be material [grounds for dismissal]”, he says.

Thus, in the IT world, if someone claims to have this certificate or went on that course, and were found not to have, they could -- probably -- be justifiably fired.

However, the law says an employer needs to ask the right questions and set out the consequences of inaccuracies, as there is no obligation on the part of employees to disclose everything. Even if recruiting a truck driver, Patterson says, it is essential that the employer asks whether the truckie has a current driving licence, as they don’t have to tell you.

If a recruitment agency supplied the employee, the law is also still unclear.

“You would think given the huge fees they charge, they would earn this by checking," Patterson says. "[But] their only obligations are covered in their terms of service and many do not have written terms of service."

He advises that firms might have a case through a breach of contract, or through negligence if they can show a recruiter did not take “reasonable due care and attention” in its processes. The Fair Trading Act may also offer a route if the agency made misleading claims, he says.

While cases like this are uncommon, the barrister claims he has successfully advised employers and brought “quite a few claims”. These include the case of a software firm in which an employee had claimed he was not dismissed from a previous job, though it turned out that he had been. The company would have had “good grounds” to dismiss him, but instead settled on giving the offender a written warning that he would be out next time, Patterson says.

While the reference-checking processes of Wellington-based recruitment agency Millennium People may have been found wanting -- it helped choose Davy -- agencies say they can spot miscreants.

Sabre Systems managing director Mike Slee says job application forms are set to a standard format to catch cheats. Many recruitment firms, he adds, have a three-month guarantee clause in which they will repay their service fee or provide a replacement if the employee is not up to scratch. But Slee warns reference checking for overseas candidates can be difficult. While Australian and UK referees are relatively easy to check, fake degrees obtained over the internet are harder to verify.

Grant Cooper of IT@Manpower says if the candidate can't supply original qualification documents and transcripts, it “rings the alarm bells”. The Privacy Act requires candidates to give recruiters and employers permission before they can make checks on their background, and if they won’t, Cooper says, “we would be asking questions”.

Protocol Personnel director Megan Fletcher says checking from former bosses -- who can be unjustifiably harsh, she acknowledges -- is covered in its "service level agreements", but Protocol has never had to replace or refund for a fraud, Fletcher says.

Have you been burned by a porked-up CV? Email HR reporter Darren Greenwood.

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