Professional Applicant Screening: Always Check for Conditions

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A recent NCAT decision in the Health Care Complaints Commission’s proceedings against an Enrolled Nurse (2021/00171685) should serve as a reminder to staffing and recruitment professionals of the importance of conducting thorough inquiries into nurse registration conditions when screening job applicants.

Background

A candidate, who completed a qualification as an Enrolled Nurse in South Africa in 2004, was first registered in South Australia as an Enrolled Nurse in 2009. In 2016, she moved from South Australia to New South Wales, where her registration under the National Law was subjected to conditions imposed by the Nursing and Midwifery Council of NSW (“the NSW Council”).

The Conditions

In summary, the relevant conditions were:

  1. Administer medications only under direct supervision.
  2. Must be supervised by a Nurse Manager who has been informed of conditions.
  3. Must inform all current and future employers of conditions.
  4. Must only be employed in circumstances where the employer has agreed to notify the Council of any breach of conditions.

The Private Hospital Placements

The candidate obtained a position as an Enrolled Nurse at a private hospital, which provided sub-acute healthcare services, having previously worked there as a temp agency nurse. The evidence suggested that the private hospital was not aware of the conditions when it employed her; or, if it was aware, did not follow through.

The candidate gave evidence that she was approached by the private hospital manager to join the hospital because the manager saw her performance at work while she was working as an agency nurse. She never went through any interview, except to be asked to bring relevant documents which she did. She said that she never said anything about her registration because she was aware that companies were not employing nurses whose registration was subject to conditions.

Her employment was subsequently terminated after the hospital became aware of the conditions.

The Respite Facility Placement

The candidate thereafter applied, through a different recruitment agency, for a position as a Medically Enrolled Nurse with a facility, which offered short term accommodation and respite for people with an intellectual disability, high physical support and/or complex health needs.

The evidence indicated that she did not disclose the registration conditions to either the new recruitment agency or to the respite facility, neither of whom seem to have been aware of them.  

Having successfully obtained the position, she undertook various duties unsupervised, including performance of tracheostomy management.

The Tribunal Proceedings

In proceedings against her by the NSW Council for unsatisfactory professional conduct and professional misconduct arising from breach of conditions, the Tribunal held that her conduct constituted “a flagrant disregard for [her] obligations … and a serious risk to the public”.

The Tribunal ordered that the EN’s registration be cancelled, and that she not be permitted to apply for review of the cancellation for a period of two years.

Observations

The outcome, of course, was a very unhappy outcome for the EN.  

However, what is of equal concern is that the staffing and recruitment agencies, the private hospital, and the respite facility all seem to have been unaware of the conditions that attached to the EN’s registration. It would surely have been easy enough to have checked. They were fortunate, perhaps, to have escaped adverse comment.

The case highlights the importance of developing and monitoring rigorous and reliable controls to ensure that applicants and candidates are thoroughly screened – not only in terms of their having current vaccinations and work entitlements; but also in terms of ascertaining any limiting or disqualifying aspects that could adversely impact the candidate’s suitability. It also higlights the need to follow through if your inquiries do reveal the presence of conditions.

It is no longer satisfactory (if it ever was), in this writer’s opinion, for staffing and recruitment professionals to occupy an all-care-no-responsibility stance, when the care fails to identify what may prove to be “a flagrant disregard for [the candidate’s] obligations … and a serious risk to the public”.

But you can make your own mind up about that.

Andrew C. Wood

A case for disclosing “RoT” in recruitment?

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Last week, I had the wonderful opportunity to contribute on a discussion panel with recruitment luminaries, Ross Clennett and Fiona Harland. We were discussing Restraints of Trade (RoT) in recruitment, and recognised that a RoT could be regarded as any impediment to a person’s freedom to carry on a trade or profession, to find or obtain work, or to arrange their workforce as they wish.

In that context, we began to examine the common practices of charging temp-to-perm (T2P) fees and of imposing restraints on clients and work seekers restricting direct engagement.

The RoT potential of T2P fees has long been recognised by the courts.[i]  Likewise, the courts have recognised the direct and indirect RoT effects of no-direct-engagement provisions.[ii]

In our discussion, we started to examine the transparency of these provisions in some of the cases we were considering.

Could the worker in Earth Force Personnel, for example, have known that his labour hire agency was going to charge the host/hirer $7,500 if he obtained a job directly with the host/hirer … in any capacity… of any duration … ever? Could he have been aware of the impact which that provision would have on his future employability?

Could Woolworths, in Informax International v Clarius, have known that the 12-month no-direct-engagement provision in its contract for the acquisition of labour hire services was protecting the providers’ interest in a 6-month restraint imposed on the contractor?   

Could the contractor, who was bound directly by an express  6-month restraint in her contract, have been aware of the indirect effect that the corresponding 12-month restraint imposed on Woolworths would have on her future employability? Or that the misaligned restraints had different start points?

All of this starts to raise issues of recruitment ethics and professional conduct. How are you dealing with these questions?  Is there a case for greater transparency on the part of recruiters?

Should recruiters be required to disclose to clients the nature of the restraints imposed on work seekers; and to work seekers, the nature and effect upon employability of the restraints imposed on clients?

What do you think?

Andrew C. Wood


[i] Earth Force Personnel Pty Ltd v EA Negri Pty Ltd [2010] VSC 426

[ii] Informax International Pty Ltd v Clarius Group Limited [2011] FCA 183