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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

August 2003

Hiring Staff

Commentary from the Employment Court

As an employer you may wonder what you should ask during the employment process. In a recent case, a company’s pre-employment questionnaire asked “Do you have any medical problems of any kind? If yes, please detail what and when”. The employee disclosed a problem with her hip joint, but failed to disclose irritable bowel syndrome and a pre-cancerous condition in her mouth. She was dismissed for failing to disclose those conditions.

At the Employment Court it was held that the question was too broad and did not relate to the employee’s ability to perform her job. Consequently, she was under no obligation to disclose all her medical problems and the dismissal was unjustified.

In another case a couple applied for jobs with the IRD but failed to disclose that they had committed benefit fraud on pre-employment forms which requested that convictions be disclosed. They were prosecuted and convicted after commencing employment. The IRD dismissed the employees.

At the Employment Court it was held that:

  • Conduct before the employment relationship began could not amount to serious misconduct.
  • Employees were not obliged to volunteer information and could not be dismissed for remaining silent.
  • The duty of good faith owed under the Act did not apply as the duty did not exist when the agreement was entered into.

The dismissals were upheld, however, because the Court applied the principles of equity and the employees were well aware of the IRD’s policy on fraud.

If you are an employer – play it safe and be very careful with the wording of your pre-employment questionnaires. Give us a call if you require assistance.