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Responsibility To Employers - Employment agency's duty of care |
In a recent case the courts decided unanimously that the Commonwealth employment Service had breached its duty of care to a prospective employer by referring to him a man with a criminal record who subsequently shot him four times. |
On-hire arrangements are proliferating in the workplace and throwing up interesting legal questions. |
In labour-hire arrangements individuals are employed by a labour-hire agency which directs an employee to complete work at the 'host' sites of third parties. Employment referral agencies, on the other hand, do not employ individuals but instead refer them to employers who then decide whether to employ the individual or not. |
'Reasonable care' would ordinarily entail disclosure of a potential employee's criminal history to the prospective employer (or host if a referral from a labour-hire company), or not sending the individual at all. |
If someone fails to take due care to look after their own interests and is thus guilty of contributory negligence, the court can reduce the damages payable by up to 100 per cent. In this case the courts found that the employer would not reasonably have foreseen that an individual referred by a referral service had a criminal record such as would put him at risk of the injury he suffered. And although he might have inquired about what the employee had been doing in the periods he was not exercising the skills relevant to the new position, it found it unlikely that an employer would have asked questions that might have led to them discovering that an employee had been in jail. As such, the employer was not guilty of contributory negligence and was awarded almost $240,000 damages plus interest; his wife was awarded $50,000. |
Although the case concerned the liability of a government employee referral agency, it is likely the decision will also apply to commercial employee referral agencies, as well as labour-hire companies. |
