taking up references

It is common practice for Australian employers to carry out checks on the most recent employment history. Only factual and verifiable information should be relied upon. Questions surrounding whether the previous employer thinks the candidate will do well in their new role can only ever be subjective as new relationships, systems and processes may produce different responses. The position is slightly different for those applying for their first job. In these instances, a reference from a person’s last place of education and a character reference should be requested.

Reference checks are usually conducted after an initial interview and the candidate is progressing to the next stage. Reference checks can help you verify the claims made by applicants in their interview and help you make a better-informed hiring decision.  

References can be checked by phone, via a standard form or online through a dedicated platform such as Checkster. Such tools allow referees the privacy, anonymity and time to provide honest and useful feedback. According to Lee-Martin Seymour, co-founder and CEO of Xref, “half of all referees prefer to provide references outside of working hours, via mobile and tablet suggests that efficient online platforms may be the way forward“.

 Fair Work Australia’s standard reference checking template is available to download from its website and can be adapted to the specific role you are recruiting for. If you are hiring a lot of staff, checking references can be outsourced to a specialist agency. 

duty of care

Court cases have proved the former (or existing) employer has a duty of care towards:

the inquiring employer, who may rely on the reference in selecting the employee

the (ex) employee – there is an implied duty of care in preparing/composing the reference.

Both employees and new employers may suffer damage or loss from an inaccurate reference and there are cases where each has won damages as a result of an ex-employer’s negligence. As a result, many organisations limit their references to confirmation of the dates the employee worked for them.

Once satisfactory references are received you can issue a formal offer, if you have not already done so, together with the contract of employment.

gardening leave

Gardening leave occurs when an employee who has resigned or been given notice of termination is required to serve all or part of their notice period without performing any of their normal duties.

Gardening leave can only be used if there is a term in the employee’s contract that permits it. The employee remains on full pay for that period and other entitlements continue to accrue and be available. Its aim is to:

  1. prevent the employee from working for another organisation during their notice period
  2. block access to clients, co-workers, confidential information and intellectual property, so the employee cannot use that access in a way that could damage the employer.

In practice, to enforce gardening leave, an employer will need to have a number of clauses in the employee’s contract from the start of employment.

Assuming the contract is enforceable the new recruit would not be able to work in their new role with you while their previous employer is still paying them. However, gardening leave is an expensive option so if you need your new employee to start working for you quickly and you are not in direct competition with their previous employer it may be possible for the employee to ask for a waiver of the gardening leave provisions. You should not encourage the employee to break their contract – it sends the wrong signal to the new employee.

Rather than using gardening leave, some employers may choose to pay an employee in lieu of notice. However, their contractual obligations may still remain in place during the notice period, even though the employment has ceased. If a previous employer has opted to pay in lieu of notice, ensure you understand what the employee’s contractual position is before allowing them to start their employment with you.

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