Herald on revealing CVs

March 11th, 2014 at 2:00 pm by David Farrar

The Herald editorial:

The law is not always an ass but it can produce an absurdity. The decision of the Human Rights Review Tribunal to make a company disclose to a failed job applicant the CVs and reference checks of others going for a job is an example.

The aggrieved party complained to the tribunal that he was discriminated against on the basis of age. He wants to see the credentials of others who applied or succeeded in the process. Under the court system’s rules of “discovery”, which the tribunal adopts, all information pertinent to an action needs to be handed over from the defendant to the plaintiff. The tribunal has dismissed an application from the company involved, Alpine Energy, to block that discovery under a section of the Evidence Act which covers confidentiality.

So Alpine and its recruitment agency must give the man the information it has on the successful candidate and those who contested and lost. This would include not only names, applications and CVs (although the tribunal and the failed job-seeker have agreed it need not include addresses and contact details) but also reference and perhaps security checks.

A pretty appalling decision. You apply in confidence for a job. Revealing that you applied could endanger your current job. Also very unappealing forcing a company to justify why it didn’t employ someone. Employment decisions are often somewhat subjective – how well they interviewed, whether or not they would fit into the team culture, whether their CV had typos in it etc.

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36 Responses to “Herald on revealing CVs”

  1. wreck1080 (3,958 comments) says:

    I agree, appalling.

    But, how can you prove discrimination?

    Really, CV’s are only part of the equation too — you could be forced to hire the most qualified geek on paper but who cannot get along with people.

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  2. kowtow (8,757 comments) says:

    Human rights trump your rights to privacy!

    Time to do away with all this bullshit and get back to common sense.

    How did it come to this?

    Some people call it “progressive” .I call it nuts.

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  3. Ashley Schaeffer (513 comments) says:

    I’m guessing the employer made the mistake of stating the reason for rejecting the application was that there were other more qualified candidates. Better not to give a reason at all as this case has now proved. Experience and qualifications are not the only determining factors when employing someone.

    I agree, an appalling decision.

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  4. In Vino Veritas (140 comments) says:

    Laughable really. There have been a couple of Government Departments lambasted in the press and by opposition political parties for releasing less information about people!

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  5. holysheet (426 comments) says:

    PC gone mad again
    I hope the applicants for the 3 new positions i filled last week don’t reads this. The 3 I appointed were head and shoulders above the rest.
    I would just say I binned the information from all the other applicants and let them prove otherwise.
    Bloody stupid decision

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  6. woodburner (30 comments) says:

    KiwiJobs – coming to a workplace near you! No longer will those pesky employers get to decide who the want to employ, Kiwijobs will take care of all recruitment!

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  7. mandk (1,017 comments) says:

    According to MBIE, the law protects all people from unlawful discrimination; this includes discrimination on the grounds of age and race (amongst others). But how, in practice, can the law do this, other than by relying on compliance?

    On the basis of coded feedback I have received, I have been discriminated in applying for jobs on the grounds of both age and race. I didn’t have any real recourse and I didn’t feel in the least bit protected.

    Is this particular law pointless?

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  8. duggledog (1,587 comments) says:

    Never ever give any reason for turning someone down. Just state ‘We are sorry to inform you that your application was unsuccessful at this time’.

    Employers practice discrimination when hiring all the time. It could be because you’re Maori, you aren’t Maori, or look like the boss’s former wife. Or it could be just a gut feeling. Or it might be Tuesday and people wearing red ties on a Tuesday reminds the employer of his hated school master

    However it turns out, it’s the employer’s call, and the employer’s business, he or she is paying the salary.

    Old saying – ‘what other people think of you is none of your business’

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  9. BeaB (2,144 comments) says:

    Just let bureaucrats, Labour and the Greens decide who you will employ, how much you will pay them and how many holidays they will get.

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  10. Kimbo (1,054 comments) says:

    ,blockquote>But, how can you prove discrimination?

    The same way you prove anything in a civil case – by presenting the evidence that is available to you. Since when does juris prudence include the right for a plaintiff to go on a fishing expedition through the private details of third parties?

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  11. UglyTruth (4,551 comments) says:

    The law is not always an ass but it can produce an absurdity.

    Statements like this are a good reason to disregard anything the Herald has to say about law. Human rights are based on fictions of law, and the findings of a tribunal are not necessarily lawful.

    Reason is the life of the law ~ Coke
    An interpretation of statute which results in an absurdity is not the preferred interpretation (a rough and incomplete restatement of Baron Parke’s maxim, aka the golden rule of statutory interpretation).

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  12. Elaycee (4,405 comments) says:

    The biggest farce is that the complainant was a previous employee of the same Company!

    Mr Waters was an employee of Alpine Energy from 1975 to 2008 when he resigned. On January 9, 2012, Mr Waters applied for the advertised position of engineering officer at Alpine Energy. Later that month he applied for the position of maintenance engineer. He went to an interview for the second position and at the same time was advised that he would not be interviewed for the first position because, “initial screening indicated that applications had been made by candidates better suited”, the decision stated. “Alpine Energy did not, however, receive the level of interest it had hoped for in respect of the second position, attracting candidates with fewer qualifications than expected. It then engaged a recruitment agency, Farrow Jamieson, to assist in finding the ideal candidate.” Mr Waters then applied for the role through Farrow Jamieson, but they did not include him in their client recommendations. “Alpine Energy denies the allegations made by Mr Waters that age or employment status were relevant to its consideration of the application by Mr Waters.”

    I have no knowledge whether this person was a great employee / a disruptive member of staff or something in between. But surely the employer has the right to select the candidate they want for the job?

    Bizarre. A terrible decision.

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  13. UrbanNeocolonialist (309 comments) says:

    Creeping tide of looters and moochers, the problem lies in the types of people appointed to these boards, the judiciary and particularly the employment tribunals.

    OSullivans law of organisations applies (any organisation that isn’t inherently right wing will become left wing over time as righties will hire/promote/appoint lefties but lefties won’t hire/promote/appoint righties). This asymmetry is screwing all of our public institutions (and media) – and will eventually drive us to needing more political appointees.

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  14. UglyTruth (4,551 comments) says:

    How did it come to this?

    Because people prefer the lie to the truth, just as they prefer human rights, which are fictions, to natural rights, which are real.

    Fuck employment, work by contract is an honourable way of getting things done.

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  15. tvb (4,502 comments) says:

    This decision is wrong CVs contain a lot of personal information that should be held in confidence, though there might be scope to reveal information that does not breach too much privacy.

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  16. peterwn (3,305 comments) says:

    Fortunately, Alpine Energy is a sufficiently large enough organisation to run the matter through the courts if need be. Fortunately it was not a small business that was made a ‘guinea pig’ with this.

    There will be cases where an applicant has allegedly good qualifications on paper but is unsuited for the job. For example X applied for a high school’s principal job – his qualifications on paper were impeccable but his teaching and management performance was known to be unsatisfactory. Senior staff discreetly alerted Board members of the issue which was as well.

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  17. igm (1,413 comments) says:

    This is a bloody disgrace. If I can’t employ whom I like, without being told to furnish CVs of other applicants to a whinging past employee, then the system stinks. This Human Rights Commission, along with all other commissions, especially the Law Commission, must be disestablished, they are a leeching ground for failed academics and socialists, all being overpaid bludgers.

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  18. Weihana (4,585 comments) says:

    The tribunal has dismissed an application from the company involved, Alpine Energy, to block that discovery under a section of the Evidence Act which covers confidentiality…

    …A pretty appalling decision. You apply in confidence for a job. Revealing that you applied could endanger your current job. Also very unappealing forcing a company to justify why it didn’t employ someone.

    It may be “unappealing” but the fact remains that the law does outlaw discrimination on certain grounds which would imply that not hiring people would have to be justified on grounds other than those prohibited under law.

    In terms of the Evidence Act the relevant test would be to balance the potential harm of someone having their job endangered because they applied for another job and the likelihood of that harm as weighed against the public interest in preventing discrimination on prohibited grounds.

    Other than a general reference to the possibility of such harm, there appears no specific information to demonstrate a likelihood of harm resulting from the disclosure of this information. On the other hand there is a clear public interest in preventing “discriminatory conduct being hidden behind a cloak of confidentiality”.

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  19. BeaB (2,144 comments) says:

    I bet it will do his employment prospects the world of good.

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  20. Weihana (4,585 comments) says:

    tvb (3,867 comments) says:
    March 11th, 2014 at 2:45 pm

    This decision is wrong CVs contain a lot of personal information that should be held in confidence, though there might be scope to reveal information that does not breach too much privacy.

    Or in other words, to judge it on a case by case basis, and in this case they found that Alpine Energy had not shown that other applicants would be harmed by disclosure.

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  21. Weihana (4,585 comments) says:

    Elaycee (3,900 comments) says:
    March 11th, 2014 at 2:22 pm

    But surely the employer has the right to select the candidate they want for the job?

    Only within the limits established under the law. I think people need to distinguish whether it is the law they don’t like or the decision. If it’s the decision then more specific information should be used to show why the ruling was wrong. If it’s the law that should be changed then that doesn’t mean the decision was “appalling”.

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  22. RightNow (6,995 comments) says:

    I hope one of the other unsuccessful applicants applies to the HRRT also to see the other CV’s, including the old sook’s CV.
    I would if I was of one of them.

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  23. OTGO (560 comments) says:

    I throw half of the CV’s we receive into the bin. You never want to employ unlucky people anyway.

    (From Ricky Gervais’ Office Wisdom.)

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  24. MT_Tinman (3,257 comments) says:

    As I have stated previously this ruling is one of the worst, most dangerous in NZ history.

    The “CV” is only part of a decision on employment and employers must be able to choose the applicant who best suits their business.

    The only other option is, as someone noted, Kiwijobs – where a gummint dept. fills vacancies for you.

    Notably this decision is also to create work for the HRT, who will, of course, hold the hearing after the CVs are handed over.

    Funny that!

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  25. calendar girl (1,264 comments) says:

    “On the basis of coded feedback I have received, I have been discriminated in applying for jobs on the grounds of both age and race. I didn’t have any real recourse and I didn’t feel in the least bit protected.”

    Sorry to hear that, but the world’s never going to be perfect. Just don’t rely on some “law” to fix any perceived problem – use rejection as motivation to strengthen your resolve.

    The employer has to be be shown – before, during and after the interview(s) – that it will be the big loser if it fails to employ you.

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  26. mara (794 comments) says:

    If I were an employer in this position I would inform the HRT that, most unfortunately, all the other CVs were binned. Oh dear, how sad, never mind. Never capitulate to these totalitarian bastards. !!!

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  27. davidp (3,587 comments) says:

    I’m confused about how the Tribunal can violate people’s right to privacy without giving them a chance to contest the violation. The unsuccessful candidates are not parties to the dispute. Where is the due process? At the very least, the Tribunal needs to inform them all of the Tribunal’s intention, and then pay for lawyers so that the candidates can oppose the release in the courts if they’re not happy having private information given to someone with an axe to grind, in violation of the Privacy Act’s Privacy Principle 10 which says information can only be used for the purposes it was specifically collected.

    I’m also surprised that the Privacy Commissioner hasn’t stepped in and taken the Tribunal to court in order to protect our collective privacy.

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  28. Jaffa (97 comments) says:

    Do the other candidates not have any “human rights?”

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  29. tas (646 comments) says:

    It’s bad enough that you can’t sack someone without having to justify it to a court. It’s the employer’s business who they chose to employ and only in exceptional circumstances should employment decisions be bought before the courts. How is this not a violation of the employer’s freedom of association?

    It sounds like a total nightmare to have some asshole sue you into giving them a job and then suing you again if you ever try to sack or discipline them. How on earth can you run a business like that?

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  30. KevinH (1,236 comments) says:

    I would agree that this is a poor decision by the Human Rights Commission because it contravenes fundamental rights enshrined in the Privacy Act 1993 which prohibits the transmission of personal information to third parties without consent.
    A judicial review of the decision I believe would result in the decision being over turned.

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  31. gander (91 comments) says:

    I’m sure I posted on this issue before – I hope not here – if so, then moderator please delete this.

    This would include not only names, applications and CVs (although the tribunal and the failed job-seeker have agreed it need not include addresses and contact details)

    Take my CV, strip out my name, contact details and demographic details, and any colleague in the country would still be able to identify me. When I apply for a position I do so with the understanding that the employer will maintain it in confidence.

    I like davidp’s approach (4:22 PM).

    I’m appalled at the attitude of some of the commenters on the Herald web site. ‘Since some people are sharing all their personal details on social media, no one’s CV should be kept private.’ Or, ‘Since some employers may be discriminating illegally against certain applicants on the basis of said applicants’ CVs, the CVs must all be made public.’ (Translation: I didn’t get the job, so I’ve been discriminated against.)

    (edited for punctuation)

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  32. OneTrack (3,223 comments) says:

    The Human Rights Review Tribunal have just proven they are a waste of space. Another quango we can save a few bucks on.

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  33. UglyTruth (4,551 comments) says:

    I’m confused about how the Tribunal can violate people’s right to privacy without giving them a chance to contest the violation.

    People don’t have a right to privacy.

    The unsuccessful candidates are not parties to the dispute. Where is the due process?

    Due process is part of the law of the land. The Human Rights Review Tribunal, as a statutory body, has no connection to the law of the land.

    At the very least, the Tribunal needs to inform them …

    No, it doesn’t.

    … violation of the Privacy Act’s Privacy Principle 10 which says information can only be used for the purposes it was specifically collected.

    except for personal agencies: “(c)(i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences;”

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  34. UglyTruth (4,551 comments) says:

    Do the other candidates not have any “human rights?”

    None that are of any real value to them.

    person: A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and or being charged with duties, while a “thing” is the object over which rights may be exercised. (Black’s dictionary of law, 2nd edition)

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  35. tas (646 comments) says:

    This is a case of a good law – non-discrimination – being overzealously enforced. If the employer openly says “I didn’t hire X because he/she was Y,” then they should be prosecuted (assuming Y is clearly wrong), but there shouldn’t be a witch hunt based on absolutely no evidence.

    The burden of proof should not be on employers. It’s simply impractical to expect employers to be able to defend every decision they make in court. I believe (correct me if I’m wrong) that if an employee is stealing from you, you need to be able to prove it to sack them i.e. just noticing the cash register doesn’t add up when that employee is on is insufficient grounds for dismissal.

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  36. Weihana (4,585 comments) says:

    tas (499 comments) says:
    March 11th, 2014 at 9:36 pm

    This is a case of a good law – non-discrimination – being overzealously enforced. If the employer openly says “I didn’t hire X because he/she was Y,” then they should be prosecuted (assuming Y is clearly wrong), but there shouldn’t be a witch hunt based on absolutely no evidence.

    Wouldn’t this nullify the law against discrimination since you are effectively providing no means by which the employment process could be reviewed?

    The burden of proof should not be on employers.

    It isn’t. The issue here is disclosure, not burden of proof. If the burden of proof were on the employer, then disclosure wouldn’t be required.

    It’s simply impractical to expect employers to be able to defend every decision they make in court.

    The Human Rights Review Tribunal can award costs and according to their website the starting position for any such award would be to award costs to the party whose position was upheld.

    Costs are a tricky matter throughout the justice system and it will always be difficult to achieve fairness in every respect.

    I believe (correct me if I’m wrong) that if an employee is stealing from you, you need to be able to prove it to sack them i.e. just noticing the cash register doesn’t add up when that employee is on is insufficient grounds for dismissal.

    Sounds about right. You need good reason to dismiss. “I believe” without a solid basis would not be a “good reason”. But that would depend on the circumstances. You would have to follow a fair process. So consider alternative explanations. But if the evidence points in one direction and the employee can provide no credible explanation then I believe you could dismiss them, and that wouuldn’t necessarily require a video recording of the employee pocketing out of the till. If the alternative explanation is that the employee made a mistake in, say, giving change to customers then you could accept that explanation but if it keeps happening then you’ve got another reason to dismiss them anyway since they can’t do the job properly.

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