Q & A: Pre-employment issues for WA employees

Your employment start date is generally the first day you start working for the employer. However, it may be earlier.

Your start date may  be written in your contract or letter of offer. If you did not receive a contract or letter of offer – your start date will usually be communicated to you in some other way (e.g phone call, conversation after interview, text message, or phone call).

Your employer is responsible for keeping a record of certain information, including the date you start employment. It is also good to keep your own record of your start date because the length of your employment can impact your right to legal claims and entitlements.

Generally, an employer does not need to give you a written contract. An employment contract can just be a verbal agreement to do work, or it can be a contract implied through action (e.g the action of you attending work and the employer paying you is likely to show that there is an employment contract).

While a written contract is generally not required, it is good practice to ask your employer to tell you about important aspects of your job in writing. For example, if your employer verbally tells you about a bonus for good performance, you should make sure that they put the promise in writing so that if you need to, you can rely on it later.

The employer is also responsible for keeping certain information about your employment on record. For example, the employer needs to record how much they pay the employee, and what day the employee worked. To access this information, you should ask your employer – they are required to provide the information. There are different time limits for the employer to provide the information – but generally, it should be no longer than 14 days.

Its not unlawful to have a verbal contract, or to be paid in cash, but you must still be given payslips every time you are paid. If you are not being given payslips, you may wish to call the Fair Work Ombudsman or seek legal advice.

Your employer is not allowed to make false or misleading representations about certain aspects of your employment. For example:

• a job advertisement that states you are going to be employed as a chef in Karratha, but after you relocate for the role, you end up working as a kitchen hand on a lower wage; or
• when you are promised a bonus during the interview and after accepting the offer, you are told that there will be no bonus available.

If your employer has made a false or misleading representation about the availability, nature or terms and conditions of employment then you have 6 years to make a legal claim. Generally, if a reasonable person would not have relied on the representation – then you would not be able to make the claim.

In most circumstances, the employer would also have had to know, or be likely to know that the claim was misleading or deceptive when they made it. If circumstances have simply changed in a way that they couldn’t have predicted, then it will be difficult to successfully make a claim.

State and National system employees can make an application to certain Courts for a misleading and deceptive conduct claim under consumer law. The best way to make your claim can depend on your circumstances, and you may need legal advice.

Employers have obligations under work safety and health laws to ensure you are safe in the workplace. For this reason, it’s acceptable to be asked to undertake a medical, to ensure that you can safely perform the role.

Of course, the assessment should be related to the role that is being done. For most standard office jobs, it is not necessary to be in peak physical fitness to safely perform the role.

If you are concerned about being asked to take a medical, you can ask how it is necessary for the role you will be performing, and request that only relevant tests be undertaken.

Keep in mind however, that refusing a medical may result in a job offer being withdrawn.

Being treated differently/badly is not always unlawful discrimination. Only certain characteristics are protected by discrimination law, these are known as “protected characteristics”. Protected characteristics include disability (including mental health issues/past injuries/illness), age, race, sex, and criminal record. For more information on discrimination see: Q&A: Workplace discrimination for WA workers.

Further, not all discrimination is unlawful. If you have an impairment which makes it unsafe for you to do a job, or means it isn’t possible for you to do the job properly, then it may be lawful for an organization not to offer you a role, based on a medical assessment.

I didn’t get the job because of a disability

You may be able to make a discrimination complaint if you have a disability that resulted in you failing the medical assessment.

Whether or not you are successful in your complaint will depend largely on how relevant your disability is to the job that you applied for.

The organisation may be able to defend your discrimination complaint if they can show that you were not able to perform the “inherent requirements” of the role because of your disability. If you can’t perform the inherent requirements, it means that you can’t do the central, most important parts of the job.

For example, if a person who was completely blind applied for a job as a lifeguard attendant, it would probably be lawful not to hire them. Even though it is discrimination, the organization would have a defence, because putting a blind person in the role would cause a safety risk, and because the applicant would be unlikely to be able to properly perform the requirements of the job, which would include monitoring the pool areas.

On the other hand, if a blind person was rejected for a role as a podcast editor, this would be more likely to be discrimination. While the vision impairment might make it a little more difficult for the person to carry out some tasks, they could still perform the core task required.

The organisation should also consider “reasonable accommodations” when determining if you can do the job. If they could make small changes, that didn’t affect them in a significant way, that would enable you to do the job, then you may be able to argue that the discrimination was unlawful.

To continue the example above, an organization might say that it’s not practical for a blind person to do a podcast audio editing job, because it requires them to see the computer software being used. However, if there is a cheap and readily available accessibility software for vision impairments, then the person may still be able to do the central parts of the job, without significant cost to the organisation.

For some jobs, it may not be possible to employ someone with a criminal record, or with particular types of convictions. However, for most roles, it is not a legal requirement to have a clean criminal record.

If there are no legal issues, then a potential employer should be considering whether or not a conviction is relevant to the role that’s being advertised. For example, if an applicant had a conviction for theft or fraud, it might be reasonable to reject them for a role in a bank or other financial institution where they would have access to large amounts of money. However, it might not be reasonable to reject someone with the same record for a job on a construction site, or as a graphic designer, or as a receptionist.

Some employers also rule out applicants on the basis of any criminal record, without considering its application to the job, and this is likely to be discriminatory.

However, while there are technically protections around discrimination for a criminal record, they are not enforceable in a commission or court, and therefore not particularly strong.

You can make a complaint to the Australian Human Rights Commission (AHRC), but they cannot give you compensation or make any other orders, and the matter can’t proceed to a Court.

The AHRC can only make a decision on whether they think discrimination occurred, and that decision can be tabled in parliament.

So making a complaint will force the organization to engage with the issue and may be helpful for getting some clarity on what happened, or coming to an agreement. However, if the organization doesn’t want to engage in the process in a meaningful way, there’s little you can do about it, and the process may not be a positive experience.

If you have a spent conviction, the protections are stronger. You can make a claim to the WA Equal Opportunity Commission for discrimination on the basis of a spent conviction.

If your crime is historical, you may wish to seek legal advice on your eligibility to apply for a spent conviction.

Generally, if you are asked about your criminal record/past injuries you should disclose it to your employer. If you make a misrepresentation regarding a criminal record/past injuries – this could be dishonesty justification disciplinary action, and possibly dismissal.

You can choose to say that you would rather not disclose these issues as you don’t believe they are relevant to the role you are applying for.

Unfortunately, it’s difficult for your employer to be able to assess whether or not a criminal record or injury is relevant, if they don’t know what it is. So an employer may choose not to employ you on the basis that they can’t assess you properly, and it may be difficult to dispute this.

You cannot make a claim for an unfair application process. Generally, the law leaves it to employers to decide who they want to employ.

The one main exception to this rule is that an employer cannot unlawfully discriminate against job applicants. For example, if an employer chose not to employ an applicant because they were pregnant, or because they were old, or because they come from a different country, this could be unlawful discrimination.

There are a number of categories of discrimination – for a full list and further information see our see: Q&A: Workplace discrimination for WA workers

Generally, in a job interview your employer will ask you if you plan to take leave in the next few months. This is to allow for staff planning and to understand when you will be available.

You should tell your employer about your pregnancy if you think that you will be taking parental leave in the next few months. If your employer asks you specifically if you are pregnant, you should be honest as there are a few protections available to pregnant employees – such as the right to a safe job, and unpaid maternity leave for employees who have at least 12 months of continuous employment.

If your employer discriminates against you because of your pregnancy or carer’s responsibilities, you may have a right to make a discrimination complaint. If you believe you were not offered a job because of your pregnancy – then this may give rise to a discrimination complaint but it may be hard to prove. For more information see: Q&A: Workplace discrimination for WA workers