News
The employer's right not to make same mistake twice
It was Charles Dickens, in Great Expectations, who coined the expression "the burnt child dreads the fire".
What he meant, of course, is that a person who has suffered terrible injury on one occasion will be particularly cautious to avoid the same type of fate on another.
That adage has some application to employment law. All too often, it seems, we read stories about employers who (either unwittingly or not) managed to hire a person who has formerly been dismissed from work with the same organisation.
A story last week highlights the sensitivities that can arise in this area.
Mei Cowan formerly worked as a probation officer for the Department of Corrections. In 2000 an inmate claimed that she prepared a false pre-sentencing report in exchange for drugs. The department investigated. It found that, although the drugs-for-favours allegation could not be proven, Cowan had been involved in the possession or use of drugs at work and in her personal life. It dismissed her.
To her credit, Cowan went on to establish a charitable trust - Sylva Vision Social and Educational Services. Although Cowan received no money as a community work sponsor, her trust offices were refurbished by four offenders who completed 422 hours of community work on office duties, cleaning, general labouring and painting.
This work was approved by a probation officer from the Department of Corrections who did not know about Cowan's past. The department had, however, considered the nature of the work, and whether the trust had suitably qualified people to supervise it.
There is no breach of any law in this example. Cowan was entitled to establish the charitable trust - and to obtain assistance from offenders performing community work.
But, on a moral level, there are some who might hold reservations about this arrangement. Cowan was, after all, dismissed by the very agency that is now apparently assisting her.
Similar issues arise where an employer re-hires an employee, having dismissed him or her for misconduct many years earlier.
There is nothing illegal about doing this –and, on one view, it is consistent with a general policy that people should be given a second chance. That philosophy is, of course, the same general ethos that underlies the Clean Slate legislation.
On the other hand, however, some employers would feel shocked to re-hire a person that had formerly breached their trust and confidence. And, should this be the case, there is nothing to prevent the employer from taking this previous breach into account in considering the employee's new application for work. The human rights legislation prohibits discrimination in hiring on a number of prescribed grounds - including such things as race and sexual orientation.
The legislation does not, however, prohibit discrimination on the basis of previous experience with the applicant. In this way, the employer can legitimately discriminate on the basis of its previous experiences with a job applicant.
That means that the employer can take into account any previous employment relationship with the person - and, in addition, any other relationship that the organisation has previously had with the person.
And surely this accords with commonsense. If the purpose of the application process is to allow the employer to determine which job applicant best suits the role on offer, it is sensible for it to be able to take into account anything about the person that might be directly relevant to that assessment - which must include previous direct experience with the person in their performance of another role.
Similar - but slightly different - issues arise around redundancy situations.
It now seems to be an all too regular event for a large organisation to make a significant number of its employees redundant.
Yet how often do we read about employers (particularly in the public sector) who, shortly after making people redundant, either re-hire them in a different capacity, or enter into contracts with them for the provision of their services?.
Once again, there is no breach of law involved in such a situation. Probably the only legal difficulty would arise if it could be shown that, by virtue of the subsequent arrangement, it could be said that no actual redundancy had existed in the first place (making the redundancy process invalid). It is the case, however, that in making a decision to re-hire or contract a person's services, the employee can take into account the person's work history prior to the redundancy.
In this way, therefore, it is possible for an employer to give practical applicantion to the Charles Dickens' adage. Where an employer has been "burnt" in its experience with an employee in the past, it can take this into account in deciding whether to go close to that particular fire again in the future.
