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Five areas to tread carefully when you're hiring to avoid a CCMA case

by , 27 July 2015
Getting the right people on board in your business is very important. Especially since it isn't always that easy to dismiss people once you've hired them! You can use application for employment forms to ask applicants a range of questions to help you when you're recruiting. But you have to make sure you can legally ask the questions... Because an employee can take you to the CCMA for unfair discrimination if he thinks you discriminated against him because of his answers!

Here are some of the areas you must tread carefully.
  1. Questions about disputes with previous employers
    You can't ask questions to try see if an employee has taken a previous employer to the CCMA or a Bargaining Council. This goes against his right to fair labour practice. The LRA provides the means by which employees may challenge the employer and you can't penalise an applicant for exercising his rights. You also can't defend this question in terms of the inherent requirements of the job.   
  2. You can ask questions about disability
    Designated employers have a duty under the Employment Equity Act take affirmative action measures for, amongst others, persons with a disability. So, you can justify asking if a person has a disability in line with your employment equity plan. But you must have a plan and be able to point to the steps being taken to affirm people with disabilities. 

    But to achieve the employment equity purpose you don't need to know the nature of the disability. You can't ask the applicant to 'describe' the disability. You may argue that you need to know the disability to see if you need to make any accommodation and, if so, if you can reasonably do so. Cover this by phrasing the question in this way: 'If so, describe any accommodation you may require?'
  3. You can't discriminate based on a criminal record
    You can check if an applicant has a criminal record as this is a matter of public record. But, you can't use the information to unfairly discriminate against someone. It's only relevant if the nature of the offence he was convicted for means he's unfit for the job he's applying for.
  4. You can only do financial checks in certain situations
    Such checks could be regarded as an infringement of the constitutional right to privacy. Unless you can justify that they impact the inherent requirements of the job. On the other hand, the Insolvency Act imposes certain restrictions on un-rehabilitated insolvents and disqualifies them from holding certain positions. For example, a financial manager position. Verifying the status of an applicant is relevant for these kinds of jobs.

    Detailed information about a person's financial history and credit record is available from credit bureau. However, the National Credit Act says a credit bureau can only issue a consumer credit report in prescribed circumstances. These include where the person is applying for a job that requires trust and honesty and entails the handling of cash or finances. And you have to have the applicants consent to do so! Limit the cases where you require consent to do credit checks to only those kinds of jobs. 
  5. You can't do fingerprint checks
    Fingerprint records aren't generally accessible to the public. You shouldn't compel an applicant to agree to having his fingerprints taken and don't discriminate against him for refusing to do so, unless the inherent requirements of the job justify this.

Be very careful when it comes to employee privacy
Remember, employee privacy extends to job applicants. Don't get caught out by asking for information that is irrelevant. The POPI Guide for HR Managers: Simple steps to comply with the POPI Act  covers everything you need to know about employee privacy. Have a look here to see what other advice and practical guidance this invaluable resource can offer you.

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