'There was no offer,' argues employer, as recruitment process scrutinised by ERA
The Employment Relations Authority (ERA) recently dealt with a dispute involving a retiree who claimed he was offered employment as a security guard and subsequently unjustifiably dismissed.
The case hinged on whether an offer of employment was actually made by the security company, which denied ever employing the worker.
This case highlights the importance of clear communication in job applications and offers. It also touches on issues of age discrimination, pre-employment checks, and the complexities of proving verbal job offers.
Job application process and alleged offer
The worker stated he attended a job interview with the security company on 11 July 2023. He claimed he was verbally offered a job at the Auckland railway station for four hours per day by a Maori interviewer in his mid-to-late 50s.
However, the company's representative stated that the worker was interviewed by two female staff members who were not Maori.
A week after the interview, the worker visited the company's office as he hadn't been contacted about his application. He was told the company was obtaining his Certificate of Approval (COA), a necessary qualification for security personnel in New Zealand.
The worker provided text messages showing his communications with the company's recruitment team and a supervising staff member. These messages indicated he was still in the application process and waiting for his COA to be processed.
On 11 July 2023, the worker received a text from the recruitment team with a link to apply for his COA. Subsequently, on 21 July 2023, he texted the recruitment team asking about the progress of his application, stating it seemed to be "taking [them] ages".
The recruitment team responded that they were still waiting to hear back from the Ministry of Justice.
Certificate of approval and outcome
The Certificate of Approval (COA) is issued by the Private Security Personnel Licensing Authority (PSPLA), which is responsible for issuing licenses, handling disciplinary matters, and maintaining a public register of all licensed private security operators. The PSPLA is administered by the Ministry of Justice.
The worker completed a COA course with a third-party provider in late July to early August 2023, passing on his second attempt. He informed the company about his COA application on 3 August 2023.
On 4 August 2023, the company emailed the worker, thanking him for his time but advising that they would not be taking his application further. The worker responded immediately, stating he would take the matter to the Employment Court, claiming age discrimination.
A search of the PSPLA's public register showed that it received the worker's COA application on 3 August 2023, and he currently holds a full permit valid until 9 November 2028. This permit allows him to work as a crowd controller, personal guard, or property guard.
Company's recruitment process
The security company rejected the worker's claims, stating he was never an employee and never received an offer of employment. They provided evidence of their seven-step recruitment process, which includes:
- Obtaining company approval to recruit
- Advertising the role
- Phone screening applicants
- Applicants completing application forms
- Following the interview process
- Checking references
- Making job offers to successful candidates
The company's representative explained:
"No evidence of the alleged offer of employment has been provided, and the claim is without foundation. No factual evidence was presented because it simply does not exist."
The company also stated that the worker's age was not a reason for declining his application. Instead, they cited his criminal and driving convictions history and the potential reputational risk these posed to the company as the reasons for not progressing his application.
ERA's findings and conclusion
The ERA found several difficulties with the worker's claim of a verbal job offer:
- Lack of corroborative evidence
- Inconsistency with the company's recruitment process
- Commercial impracticality of offering employment without background checks
- Unlikely specificity of the alleged job location
- The worker's own text messages suggesting he was still in the application process
- The company's email clearly stated they were not progressing with his application
The ERA said:
"For the reasons given above, the Authority finds that no offer of employment, oral or written, was made by [the company] to [the worker]. It follows that he was never employed by the company and as he was never an employee, he could not have been unjustifiably dismissed."
This decision emphasises the importance of clear, documented job offers and the challenges of proving verbal agreements in employment disputes.
The ERA also noted:
"It appears to have been a mistake for [the worker's] criminal record to be disclosed to a third party when it is subject to the clean slate scheme. However, as the recipient, [the company] is not at fault and it cannot unsee what it has seen. It ultimately chose, in its discretion, not to progress [the worker's] job application."
This observation highlights the complexities surrounding criminal record checks and their impact on employment decisions. The ERA acknowledged that the worker's criminal convictions were mostly from his youth and should have been subject to the Criminal Records (Clean Slate) Act 2004. However, once the company received this information, they couldn't disregard it in their decision-making process.
