With a new year we may see a few fresh faces at work. But
before you invite that new employee to join your team, consider
asking a few more questions.
And don't forget about the paperwork before they begin too.
You might just avoid making costly mistakes, writes
employment lawyer Lucia Vincent.
Asking the right questions...
Whether it's a 5 minute chat with a prospective employee or a
full-on recruitment drive, as an employer you are likely to
only hear the answers the applicant thinks you want to hear.
Asking the right questions forms a vital starting point when
engaging quality staff.
Asking a comprehensive list of questions designed to find out
information relevant to the role reduces the risk of
employing someone without knowing crucial information that
could influence whether you employ them. Gathering
information about the applicant's skills, experience and
qualifications is always important. But don't stop there.
Also ask about whether someone is legally entitled to work in
New Zealand and for verification of this.1 Ask if an applicant has any criminal convictions
or charges pending.2 And what about any
medical conditions that could inhibit their ability to do the
... without discriminating...
But don't get too carried away. Whether during an interview
or in a written application form, asking about religious or
political beliefs, marital status, or childcare
responsibilities is likely to breach the Human Rights Act
1993 that makes it unlawful for an employer to refuse to
employ someone solely on the basis of a prohibited ground of
An employer cannot lawfully advertise or ask questions that
indicate that they may intend to discriminate.4 The general rule of thumb is to ask only for
information that helps you to assess an applicant's
suitability for the position, as far as it is relevant to the
nature and type of work undertaken. The Employment Court
clarified that asking about "... any medical problems of any
kind" in an application form for a Counter Sales position
went too far.5
Although an employer "must be able to ascertain whether the
applicant has any medical problems or disabilities which
might impact on their ability to do the job to a satisfactory
standard" (47), the question posed would enable "an employer
potentially to reject an applicant on the basis that she
suffers from a disability or medical condition even if it
would have minimal or no impact on her job" (55).
... before you make an offer
But you must ask the right questions before you offer someone
the job if you are to avoid being stuck with someone. If you
employ someone and find out something you don't like later,
it's usually too late. Any attempt to dismiss someone for
failing to tell you something you didn't ask about is likely
to be unjustified.
For example, in response to a question about convictions, an
applicant could honestly say they have none, despite being
recently charged with an offence. The duty of good faith that
would normally require an employee to be proactive about
disclosing relevant information, just doesn't apply before
the employment relationship begins.
Lying to get the job
An applicant's misrepresentation at a job interview (also
known as lying to get the job), could be grounds for ending
employment. Usually only if you have relied on what they have
said in deciding to employ them. But if an applicant failed
to disclose information you didn't ask for, it's much more
In an Employment Court case a couple who applied for
positions with the IRD as customer services officers, and who
truthfully stated that they had no convictions, had failed to
say they'd been charged under the Crimes Act 1961 and the
Social Security Act 1964 for benefit fraud.6 The IRD discovered this when the couple asked
for time off to appear in Court where they intended to plead
guilty. They were later dismissed for serious misconduct.
Strictly speaking the couple had done nothing wrong in
failing to talk about the charges because they had given
"honest and proper answers to all questions put to them
during their rigorous selection and initiation processes"
(5). Regrettably the IRD just didn't ask the right questions,
employed the couple, and couldn't claim any misconduct had
occurred during the relationship or that they had relied on a
misrepresentation in employing them (39). Ultimately the
Court's "exceptional jurisdiction" to decide cases with
equity and good conscience resulted in the couple's personal
grievances being dismissed (53).
All employees must have written employment
agreements.7 So before that fresh face
begins, make sure they've signed one. Facing financial
penalties (up to $20,000) for failing to comply with this key
obligation may motivate employers to prioritise
paperwork.8 As will any hope of relying
on a trial period. 9 Even signing a
written agreement only hours after beginning work (or months
after accepting a position), can result in a trial period
An employer should provide a copy of a written agreement well
before expecting an employee to sign it too. This is because
an employer must tell an employee that they are entitled to a
reasonable opportunity to seek independent advice on the
agreement they have offered, and that they will consider and
respond to any issues raised by the employee in good faith.
Just too hard?
Is it just too hard to ask the right questions, get a written
record of the answers, arrange employment agreements early
and get staff to sign before they start? If you want to avoid
problem staff and paperwork hassles later in the year - it's
just too hard, and possibly costly for your business, if you
References: 1/ Visit the VisaView tool provided
by Immigration New Zealand to employers wanting to check
whether an applicant who is not a New Zealand citizen can work
Please note that it is an offence for an employer to ask an
applicant to disregard the provisions of the Criminal Records
(Clean Slate) Act 2004 that allows an applicant to say they
have no convictions if they meet the criteria under that Act.
3/ Section 22, Human Rights Act 1993 4/ Section 23, 67 Human
Rights Act 1993 5/ Imperial Enterprises Ltd v Attwood  2
ERNZ 740 (EMC) 6/ Murray v Attorney-General  1 ERNZ 184
(EMC) 7/ Section 65(1)(a) Employment Relations Act 2000 8/
Section 65(4) Employment Relations Act 2000 9/ Section 67A
Employment Relations Act 2000 10/ Blackmore v Honick Properties
Ltd  NZEmpC 152 11/ Section 63A(2) Employment Relations
Lucia Vincent is a Senior Solicitor based in the Dunedin
office of Janet Copeland Law, Employment Lawyers. For advice on
any aspect of the employment relationship, you can contact
Lucia at Lucia.Vincent@JCLaw.co.nz
or on 03 474 5826 or 021 223 4694.
We remind you that while this article provides commentary
on employment law topics, it should not be used as a
substitute for legal or professional advice for specific
situations. Please seek guidance from your employment lawyer
for any questions specific to your workplace.