OPINION: Getting the right person for the right job is crucial to any business, and getting it wrong can be costly.
Employers are often baffled when a person they employ turns out to be hopeless. They interviewed well, had a great curriculum vitae and perhaps a reasonable written reference or two.
At this point, further probing frequently reveals a lack of pre-employment screening, particularly in relation to checking a potential employee's referees, qualifications and experience.
Where an employee has only exaggerated their abilities to a moderate extent, it can take some time to realise they are not quite up to the job, but may become so with training and time. In more extreme cases, the deficiencies are noticeable immediately.
The recent case of Qin v Trust Worthy Automotive is an extreme example. Mr Qin had just arrived from China and saw an advertisement circulating on a Chinese website amongst the Chinese community in New Zealand. The advertisement was seeking an assistant mechanic.
Mr Qin arrived at the workplace without an appointment and applied for the position. The director, Mr Xu, interviewed Mr Qin and after an interview lasting only ten to twenty minutes, offered him the job.
Mr Qin commenced work on 2 April 2012, however, Mr Xu was immediately discouraged when it became clear that Mr Qin knew absolutely nothing about cars, did not know
what an air filter was or where to find one and in fact, did not know how to drive.
On 3 April 2012, Mr Xu realized that there was nothing Mr Qin could do in the business and conveyed this to Mr Qin. Mr Qin asked for, and was given, one more day to prove himself, which he was unable to do. On 4 April 2012, Mr Xu terminated the employment relationship.
Mr Qin unsuccessfully filed for unjustified dismissal with the Authority. The Authority held that Mr Xu would never have employed Mr Qin as an assistant mechanic had the latter honestly told him that he knew nothing about cars and could not drive.
Although this is a rather stark case of pre-employment misrepresentation, employers can justifiably dismiss someone for misrepresentation in certain circumstances.
Best practice is to include a clause in the employment agreement which states that disciplinary action, including dismissal, can be taken against an employee who is found to have misrepresented themselves. The misrepresentation should also have been deliberate, significant and to have materially influenced the employer's decision to offer employment.
- Erin Burke is a senior solicitor with the Employers and Manufacturers Association (Northern) and is based in Hamilton. She has lectured in employment law at the Department of Law, University of Waikato and can be contacted at: firstname.lastname@example.org
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