About one month ago you hired someone into your organisation (a small-to-mid sized, privately owned business).  Although it was for a mid-management role, you considered them to be a ‘dream hire’ for your business and you expressed that opinion that to others.  The person was wanting to move out of the public sector, had skills and experience beyond what you ever thought you’d be able to attract, they interviewed well, and you received great feedback through your reference checks.

The first month of their employment has been really good.  They’re progressing well, building good relationships and have introduced some good ideas already.

Last night you were catching up with one of your non-executive board members.  That board member also works within the public system, and loosely knows your new hire.  The board member tells you that your new employee is still employed within the public system, and is on leave without pay.

What would you do next?

In reality, the employee was called into a meeting the following morning and dismissed with a payment in lieu of notice.  The decision maker (who was the same person that hired the employee) didn’t ask any questions of the employee.  Based on the information from the non‑executive director, they formed the view the employee had been dishonest and had mislead them.  They told the employee that they could no longer trust them based on the non‑disclosure.  They refused to listen to the employee’s attempted explanation.  It was too late.

On one view, this was a low legal risk decision.  The employee was within both their probation period and the minimum employment period (for unfair dismissal), and the grounds for the decision were not unlawful.

On another view, the employer just terminated their ‘dream hire’, and without so much as a single question.

While it might have been assessed as a fairly low risk dismissal, had the person actually been dishonest or misleading?  The information given by the non-executive direct was reliable, but was it a good decision?

Legally, while a candidate must be honest in the recruitment process, they are not required to volunteer things that the employer hasn’t asked about, even if they think the employer might consider it relevant had they known.  An employer is expected to know what information they need to obtain from a candidate, and to ask the questions they consider relevant.  In this instance, the employee (then candidate) did not say anything that was actually misleading or dishonest.  Coming from the public sector, this was not an issue associated with a conflict of interest, the application of non-competition provisions, or concerns about the misuse of confidential information for the new employer.

Of course, legal realities don’t necessarily align with commercial realities and a response that “you didn’t ask” is unlikely to convince a decision maker who already holds trust-based concerns.

While some might make the same decision in those circumstances, it’s worth rounding this out by understanding the employee’s version of reality.

They had been working in the public sector for a decade or so, and were looking to move into the private sector.  An opportunity presented itself, and they interviewed.  The process was positive, they quickly built a good relationship with the hirer, and they were excited and grateful to be told that they would be getting an offer.

When the employee resigned, in writing, from their current employment, they met supportive resistance from their Manager within the public system.  The Manager was sad to be losing the employee from their team, and held multiple discussions in an effort to convince the employee to stay.  Ultimately, they spoke to the employee and told them:

• They respected the employee’s decision, but really didn’t want to lose them.
• They wanted the employee to know that if they changed their mind in the future, they wanted them to come back.
• Although the employee was resigning, the Manager intended treat it like leave without pay, so that the employee would come back if they didn’t like the new role.
• The employee told them that they wouldn’t be returning, but the Manager was insistent and suggested the employee had nothing to lose by it.

While the employee had no intention of returning the public sector, they stopped arguing with the Manager’s actions, mainly as a path of least resistance but also because they saw no benefit burning the relationship and adding insult to the resignation.  The employee didn’t receive anything in writing about the leave without pay, and was also paid out their leave balance when they left.  When it came to the new employment, it didn’t even occur to the employee to mention the leave without pay discussion to the person who had interviewed them.

In the cold light of day, we might consider the employee’s actions naïve, but they were neither dishonest nor misleading.  The information provided by the non-executive director was considered reliable, and was enough for the new employer to form the view that they had lost trust in the employee, but was it enough information to make a good decision?