OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT REFEREE REPORTS FACTS & MYTHS Terry Lisson Director Promotion Appeals & Grievance Reviews 22 November 2011

NT PS Merit Selection • Referee reports should be the most useful, reliable and valuable tool in merit selection

Code of Conduct – 17.6 “When required to give references for, or make reports on, other Public Sector employees or on persons outside the Public Sector, employees have a duty to provide frank and accurate comment.”

Who are Referees? • Referees are not just someone nominated by an applicant to say good things about them • To be effective, referees must be the persons best-placed to give current, relevant feedback on an applicant’s merit – e.g. present supervisors and managers, clients, perhaps in some instances also teammates, or others in the workplace

Speaking to Referees • By simply knowing what information it is appropriate to ask for, panels can add value to the assessment process. • Knowing about past performance can alert you to both strengths and weaknesses that may not be evident or accurate based on an application and/or interview.

Speaking to Referees If you want information about both general and specific job duties, responsibilities, competencies and overall performance, then ask!

Things you can and should ask • What were the applicant’s responsibilities and functions? At what level, how many staff did they manage? What is your level and what is your role in relation to the applicant? Is there another person well-placed to provide useful information? • Have there been poor performance issues and what was the outcome? • Can you verify and comment on *** (claims made in the job application)***? • What are the applicant’s strengths and weakness in relation to the requirements of this job? • Are there any other concerns – e.g. ability to work in a team, disciplinary issues, ?

When to do the referee check? • At any time that it would assist the panel in making their assessment of the applicants’ merit, or in deciding what areas they might need to explore further in relation to a particular applicant. • Contacting referees as part of shortlisting applicants for further consideration is highly recommended

Contacting Referees First • By contacting referees at the start of a selection process the panel may be able to avoid doing unnecessary interviews of persons whose referee reports do not support their claims • Information obtained by referees in advance can then be used to inform the discussion with individual applicants (rather than a set of identical questions) • Most importantly, it becomes very easy to afford natural justice if the referees have already been contacted.

Natural Justice • Natural Justice is fundamental to all aspects of a selection process, including referee checks. • Applicants are entitled to be made aware of seriously adverse information about them and to have a reasonable right of response, and to have any information given in response be considered impartially before a decision is made.

Myth - You cannot contact non-nominated referees • Sometimes non-nominated referees are the source with the most current and relevant information about the person’s ability to perform the job. • If non-nominated referees are contacted, the rules of natural justice create a requirement to give the applicant the chance to hear and respond to any seriously damaging comment. • A nominated referee should also always be contacted if a non-nominated referee has been • Best practice is to advise applicants you will be contacting referees and who they will be

Myth – You only need to contact referees if the applicant has performed well enough at interview that they have a good chance at getting the job. • This practice guarantees that a good candidate for the job, but who has poor ability to sell themself doesn’t get the benefit of their referees to help counter the bad impression they may have made at interview. • It is after a poor result at interview that referee reports become even more important.

Myth – You can only ask referees to address the specific selection criteria and cannot ask questions that go beyond this • “Referee checking can be one of the most valuable parts of the assessment process. However its effectiveness can be limited by panel perceptions of what they can, and importantly, cannot, ask of referees.” (Qld Government OPSC Recruitment and Selection Processes October 2007)

Performance Based Assessment • The best source for assessment of applicants should be their known and demonstrated work performance. • Any employee should be able to rely on the fact that their day-to-day performance on the job will count towards their achieving promotion

The Importance of Referees • If the main source for assessing the merit of applicants is to be their demonstrated work performance, then referee reports become very important in the selection process • Probably the best way to assess work performance is through the knowledge of supervisors, managers, colleagues and even subordinates – not through the claims of the applicant!

Message from the Commissioner • If an employee has been promoted to a position where they are supervising and managing other employees, then it becomes part of their job to give fair, complete, honest and accurate information about work performance, as part of any NTPS selection process involving their staff.

Future Direction - PDPs • As the NTPS puts in place Performance Development Plans, those regular written reports tied closely to the Capability and Leadership Framework may become a source – perhaps the main one – to inform selection processes. • This does not mean the PDPs will be used ‘against’ people – it simply means that the best available information about employees’ demonstrated work history is being used to assess merit.

Liability of Referees • Myth- If I give a referee report I am leaving myself open to being sued – so it is best to just say nothing, to be less than frank, or to give only a statement of service.

Liability of Referees • The fear of lawsuits is not substantiated by relevant case law • The reality is that there have been very few, if any, cases where an employer was successfully sued for providing an honest reference given in good faith. • In fact the opposite is true.

3 commonly known cases: 1) An employee exhibited bizarre behaviour including writing the word ‘blood’ next to a list of employees, and was dismissed for bringing a gun to work. He was given a “glowing” reference and went on to shoot 5 employees at his next job (Jerner v Allstate–1995 Florida)

3 commonly known cases: 2) A teacher who had numerous allegations of sexual misconduct was “unconditionally recommended for any administrative post”, without any mention of the concerns. He then went on to molest a student at his next job. (Randi W v Muroc School District 1997)

3 commonly known cases: 3) An employer discovered his employee had lied about the reason for leaving his job when really he was going to work for a competitor. The employer then gave a very damaging (and untrue) reference. As a result the new employer withdrew the offer. Damages awarded of nearly $300,000 ($250,000 punitive)(Gibson v Overnight Transport 2003)

Liability of Referees • These cases in no way suggest that we should give out less information or that we should be afraid to give a frank and factual reference. They simply reinforce that honesty is the best policy. If the employers in the above cases had used dispassionate common sense, those cases would never have gone to trial and employers would be more confident in what can be shared when someone calls for a reference.

Don’t be afraid to give honest referee reports! • Selection of applicants will be better, more consistent with the merit principle, and a lot easier, if we get, and give, frank, factual and relevant employee references.

Merit selection is an Investigation Selection panels should remember that the process is an investigation and is all about hiring the person with the best capacity to perform in the position (Not the best capacity to perform in the selection process!)

Giving Good Feedback • Lack of understanding as to why the successful applicant was found to be of superior merit is one of the main reasons for appeals and grievances. (This is particularly so in cases where the unsuccessful applicant meets all the selection criteria.) • The best Individual Selection report should be one that answers all the questions the unsuccessful applicant might have

Myth - You cannot make comparisons between the individual and the successful applicant in the Individual Selection Report “Rating against specific criteria may be useful to those with identifiable deficiencies. But for applicants who meet or exceed the criteria, only a comparison against even better applicants will help them understand why they were not selected.” (Qld Government OPSC Recruitment and Selection Processes October 2007)

Feedback for Unsuccessful Applicants Generally the best feedback is a comprehensive explanation as to why the selection panel believes the successful applicant is superior in their capacity to do the job.

Good Practice Guidelines to Merit Selection • Available on OCPE website • http://www.ocpe.nt.gov.au/__data/assets/pdf_file/0018/45162/Good_Practice_Guidelines_to_Selection_Processes.pdf

Questions? • Please feel free to contact: Terry Lisson 8999 4128 Promotion Appeals & Grievance Review

OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT