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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Lines of enquiry

Screening can be a critical step towards workplace safety, says CRAIG GUBINS.

Our business grew out of my experience as an intelligence officer with the SIS and the years I spent managing the Government’s security vetting programme. Even to those who have not read John Le Carré, it will be obvious that in that particular world people are not only an organisation’s greatest assets, but also represent their greatest risk.

Since we became established five years ago we have been challenged to explore and develop our thinking with respect to how employees pose risks to their employers, and the businesses that employ them.

An obvious starting point is the use of drugs and alcohol. We are generally concerned with this issue because in physical environments which pose a low risk to employees, such as offices, the risk to employers relates to job performance – whether employees are doing the job they are paid to do, doing it well, being reliable, not embarrassing the employer in front of clients and not imposing a burden on other employees by not pulling their weight. The risk can be financial, such as where an employee indulges in theft or fraud to support a drug habit.

The smoke-free workplaces legislation was the first sortie into the idea that personal habits can be a risk to the health and safety of fellow employees. Since then, the responsibility of all employers to provide a workplace where all staff are protected from injury and harm, in ways that had not previously been considered, has been developed in health and safety legislation. So it is no longer a stretch to make a connection between the employer’s obligations and the risks posed by habits such as drug and alcohol use.

The next question is whether the tools we provide as background screeners have the potential to not only protect employees from injury and harm that may be inflicted by fellow employees, but at the same time protect employers from any liability imposed by legislation.

Drug testing

There is no law in New Zealand relating to drug testing in the workplace. The Department of Labour’s advice is that instituting employee drug testing depends on factors such as whether the employee’s work directly impacts on the safety of others and whether there is a potential health and safety risk.

In 2004, in a landmark decision, the Employment Court upheld Air New Zea land’s right to implement a drug testing programme for staff in safety sensitive positions; for the random testing of employees in “safety-sensitive areas”; for testing workers suspected of taking drugs whose behaviour is or could be harmful; for the testing of workers involved in an accident or near-miss; and for pre-employment screening.

More recently, in December 2007, the Court upheld another challenge to workplace drug testing in the case of MUNZ v TLNZ. The Court further endorsed the findings of the Air New Zealand case and ruled that it was legal for TLNZ to implement a drug testing policy.

Alcohol abuse

Because there is a well known link between drug and alcohol abuse and crime, an investigation of a candidate’s criminal record is the logical place to begin an enquiry into this question.

Does a potential employee have any disclosable criminal convictions? We have to bear in mind the impact of the Clean Slate Act 2004 and similar legislation in other countries which is why I say “disclosable”, but records can be obtained from all over the world so the fluid nature of international employment is not a barrier to this enquiry.

The second place to look has to be a candidate’s driver conviction record. Alcohol use is of course not illegal, but driving under the influence of it is, and offending is prosecuted under the Land Transport Act. Going down this trail a little further, a driver’s licence status report will establish a candidate’s entitlement to drive, whether they have the appropriate class of driver licence an employer may require, and whether there are conditions or restrictions imposed on their driving. These are all important safety considerations over and above the issue of drug and alcohol abuse.

It is also possible to obtain a history of demerit points and driver suspension. This will reveal whether there is a history of careless or dangerous driving, or a history of speeding or other reckless driving behaviour which does not register as a court conviction.

Remember that anyone with 80-90 demerit points is on the verge of being disqualified from driving. This is another way to find out whether the candidate is liable to behaviour which may raise concerns in occupations where risk taking and irresponsibility with respect to the safety of others would be a barrier to employment.

In addition, the status of an employee’s driver licence can be monitored so that an employer can be alerted immediately should they become suspended or disqualified from driving. And fulltime driver licence monitoring will become even more necessary for employers next year when new legislation comes into force as driver licence stop orders will cancel the licences of people who owe traffic fines, reparations or offender levies.

So if a candidate is regularly coming to the attention of the police because of their criminal or driving behaviour it might be an indication of the inappropriate use of recreational substances, or of wider issues of concern such as their overall responsibility and maturity.

Disregard for personal safety, let alone the safety of others, in private time, could be a strong indication of a candidate’s attitude towards safety in the workplace. Which leads to the next line of enquiry we can consider – ACC.

ACC history

A candidate’s ACC claims history can be revealing. Clearly a list of injuries will give a clue as to a candidate’s relationship with safety. They may be accident-prone, or there may be issues such as recklessness or irresponsibility, which could indicate that a candidate would have difficulty following an employer’s workplace safety policy.

On the other hand, sports-crazy New Zealand may also account for the long list of injuries a candidate has sustained. The issue here is whether this is evidence of problems that could make it difficult for them to undertake the position you are considering them for, or whether they are likely to spend much time actually working for you.

Present and past employers

Another key indication of a candidate’s previous reliability and adherence to workplace safety polices can be obtained by contacting a candidate’s former employers.

Confirming work history is not without its challenges and it is important to know what questions can and cannot be lawfully asked.

A few years ago in California, a lawsuit was brought against the owners of an apartment complex by the mother of a woman who had lived in one of the apartments, but who had been raped and murdered.

The mother’s suit for wrongful death contended that the killer was a maintenance worker employed at the complex, that he was a convicted felon and registered sex offender, and that the owners of the building had not done a background check before hiring him and giving him access to all the apartments.

The plaintiff’s lawyer contended that if the company had undertaken a pre-employment check it would have learnt of the worker’s criminal history, not employed him, and the plaintiff’s daughter would still be alive. The jury agreed and awarded the mother US$12 million.

It couldn’t happen in New Zealand? Think again. Several weeks ago in the High Court at Rotorua, 37-year-old Mathew Everson was sentenced to preventive detention after being convicted of nine charges of performing indecent acts on eight girls aged 11-12 years old, who had attended a school camp at a property where he was employed.

Everson had prior convictions for rape, sexual violation and performing indecent acts on girls and boys, and had served terms of imprisonment for these. In fact, his earlier offending had been so serious that preventive detention had been considered.

The judge suppressed the name of the camp but you can be certain that every school in the Bay of Plenty knows who they are, and that their business will suffer accordingly.

The failure of the camp owners to undertake any background screening before employing Everson, and then allowing him to have unsupervised contact with children, is no different from the failure of the Los Angeles apartment owners. Both could, and should, have known about their employee’s criminal past before hiring them.

Verify qualifications

A couple of years ago an upmarket Auckland gym and sports club employed 38 year old Jonathon Steven Mann as a physiotherapist and osteopath. Over the next 18 months he performed numerous restricted treatments on patients, including “high-velocity” manipulations of the lower spine.

Unfortunately he had no qualifications in physiotherapy, his employers didn’t bother to check and they placed the health and safety of their clients at risk. Commercially, the adverse publicity resulting from Mann’s conviction for misrepresentation compromised the reputation and profitability of the gym. But what if a client had suffered permanent injury?

Check references

In February 2008 the Health and Disability Commissioner censured Wanganui Hospital for the inadequate reference checking it undertook before employing Dr Roman Hasil, an obstetrician and gynaecologist from Slovakia.

The enquiry arose from failed tubal ligation operations performed by Hasil that resulted in eight women later becoming pregnant. A woman also had her ovaries removed by Hasil without her knowledge and only discovered it had happened months later after a routine visit to her GP.

The Commissioner noted that the hospital had cut corners in the face of endemic staff shortages and that there had been “a lack of care in appointing staff”. Hasil had originally been referred by recruitment agency Enterprise Medical, a branch of Auckland-based Enterprise Recruitment, and the Commissioner observed that it was clear that both Hasil and the recruitment agency (which prepared Hasil’s CV) had difficulty in providing satisfactory referees.

The Commissioner’s report concluded that one referee (a consultant obstetrician) had provided a “damning” reference to Enterprise Medical, but that it was not documented nor reported to Wanganui Hospital. The Commissioner reported such agencies have a commercial interest in placing a candidate and that Enterprise Medical’s process was less than reliable.

Unbeknown to the hospital, because it did not undertake adequate independent pre-employment checks, Hasil had previously served a term of imprisonment in Singapore and had a “chequered work and medical registration history” in several Australian states.

In March 2005, five months before being employed by Wanganui Hospital, Hasil resigned from Lismore Base hospital in New South Wales while under investigation for falsifying his timesheets and later that year he was dismissed from Angliss Hospital in Victoria for alcohol use while on duty.

From the outset of his employment at Wanganui, concerns were raised about Hasil. They initially related to his competence; later, Hasil was reported to be smelling of alcohol while on duty on several occasions. The concerns about his competence did not abate, and further patient and staff complaints were received.

The Commissioner found Hasil’s background should have come to light during the process of his pre-employment and registration in New Zealand. It did not, owing to inadequate reference checking and credentialing. The Commissioner said his report has national implications.

By incorporating a pre-employment screening programme into your recruitment process you can minimise or even avoid the nightmares that arise from hiring a person with an unsuitable record, false qualifications, or some other issue that makes a job applicant unqualified, dangerous or unfit for the position.

It always pays to check everything – you never know what you may find !

Craig Gubbins is a director of Personal Verification Ltd, an independent pre-employment background screening company.

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