How to screen for misconduct

This is an example of how pre-employment misconduct screening could work in an organisation.

How you implement the misconduct screening policies will depend on the size of your organisation.

The key priorities are:

the candidate receives and completes the misconduct forms
the hiring manager never sees any of the information in a candidate’s misconduct forms
you assess the level of pre-screening you do on the role’s level of risk

You can choose when you’d like to screen candidates based on the role’s level of risk. It’s usually done at the preferred candidate stage.

Step 1: make candidates aware of pre-screening

Who does this

Hiring manager

What you need to do

The hiring manager needs to make it clear that the preferred candidate may undergo pre-employment misconduct screening in:

the position description
the job advertisement
interviews

Try not to frame the communication about pre-employment screening in a way that would discourage any candidate.

The hiring manager tells the recruitment team who their preferred candidate is after they’ve finished interviews.

Step 2: send forms to the preferred candidate

Who does this

Recruitment team or equivalent role that does these duties

What you need to do

The recruitment team or equivalent role sends the preferred candidate the forms they need to fill out.

Send the candidates this statutory declaration and consent form (DOCX 153KB). Make sure you modify the form so it’s relevant to the role – executive or non-executive.

If a candidate can’t use the statutory declaration, they can use the misconduct declaration form (DOCX 137KB).

The candidate must send the forms back to the independent panel or recruitment team and not the hiring manager.

This helps prevent:

discrimination and bias in the recruitment process
the hiring manager from seeing information not relevant to the role.

Step 3: identify who you need to contact

Who does this

Recruitment team or consideration panel

What you need to do

The candidate should give you contact information for someone from their previous employer.

If they don’t, you may need to contact the recruitment team or equivalent from the candidate’s current or former employers for the past 10 years.

If they’re not the right team, they’ll be able to put you in touch with who is.

Here are some examples of who is best to contact in a situation:

where the candidate has declared a termination due to misconduct, you need to contact the recruitment team of that employer
where the candidate has declared substantiated findings of misconduct, you need to contact the recruitment team of the employers or employers for the past 10 years
where the candidate has declared an open misconduct investigation, you need to contact their current or immediate past employer

If you’re validating information from past or current Victorian Public Service (VPS) employers, contact the VPSC at integrity@vpsc.vic.gov.au and they will give you the right contact.

Step 4: understand what you’re looking for

Who does this

Consideration panel

What you need to do

Before you validate a candidate’s declaration, be familiar with some of these types of misconduct or issues you may come across.

Declaration of adverse conduct history

The candidate may declare they have been terminated due to misconduct, had substantiated findings of misconduct, or there may be an open misconduct investigation.

You will need to validate this with their previous employer/s to find out what kind of misconduct was involved, to assess the risk it poses to the role advertised.

You must give the candidate a chance to explain the adverse conduct history before making any decisions about whether to employ them or not.

Declarable associations

Declarable associations are where a person has an association with a person or group whose alleged unlawful activity could reasonably be seen as increasing the risk of a conflict of interest (COI).

A declarable association is when:

a candidate is connected to people who have allegedly taken part in unlawful activity
a reasonable person would see this unlawful activity as raising the risk of a conflict of interest

It can be an actual, potential or perceived conflict of interest.

This declaration needs to be part of your pre-employment screening.

A candidate must declare these associations where they’re relevant to the inherent requirements of the role.

Access the declaration and management of conflict of interest form template (DOCX 45KB).

Declarable private interests

Declarable private interests are a candidate’s actual or perceived conflicts of interests.

This declaration needs to be part of your pre-employment screening.

A candidate must declare any interests that could improperly influence or be seen to influence how they perform in the role.

Access the declaration and management of private interests form template (DOCX 126KB).

False or contradictory declarations

If a candidate’s declaration contradicts what a current or former employer says, there may be a few reasons:

the candidate has made a false declaration
the candidate is bound by a separation or confidentiality agreement
the candidate has made a genuine error.

Before you decide whether to employ the candidate, you must let the candidate respond to the contradictory information from their previous employer.

If you’re satisfied the candidate hasn’t made a false declaration:

record this in your consideration panel report
add any other information given to you by the candidate and their previous employers.

If you think the candidate has made a false declaration, seek legal advice on how to proceed.

Knowingly making a false statutory declaration is a criminal offence under the Oaths and Affirmations Act 2018.

Separation agreements or other confidentiality obligations

Sometimes candidates or employers can’t disclose relevant information because of:

confidentiality or non-disclosure obligations
legislation
industrial workplace instruments, such as enterprise agreements
directions from an anti-corruption or law enforcement body

To comply with their obligations, candidates, current and former employers may not be able to give you all the information you need.

For example, a candidate may resolve a misconduct issue with a separation agreement or deed of release to agree they’ll leave their job. This agreement or deed of release would likely have a legally binding confidentiality obligation in it.

You need to be mindful of these obligations when conducting misconduct screening.

On the misconduct declaration form, a candidate may answer with ‘do not know/cannot answer’. To minimise the risk of a confidentiality or contract breach when you validate this, ask:

“Did you select ‘do not know/cannot answer’ because you can’t answer that question because of legal reasons?”

If the candidate answers “yes”, don’t ask them anything else about that matter.

You can’t deem a candidate unsuitable for a role based on a confidentiality obligation.

Base your decision on other information you have and the level of risk inherent in the role.

If you’re entering a separation agreement

If you need to enter a separation agreement with an employee, think about what integrity risks this presents for future employers.

If you can’t avoid a separation agreement, you may want to word the agreement to permit the sharing of some information.

See the Victorian Equal Opportunity and Human Rights Commissions’ Preventing and responding to workplace sexual harassment Guideline, pages 89 to 90, for guidance on tailoring the agreement, and if necessary, seek legal advice.

External recruitment agencies

Regardless of where or how you source your candidates, they all must go through pre-employment screening.

This includes consultants, contractors or other non-direct hiring where you have used an external recruitment agency.

You must include the requirement for pre-employment screening in all hiring contracts if you’re not using the staffing services contract.

If you use third parties to run your recruitment services, they must implement a process in line with this policy.

Step 5: validate the information with previous or current employers

Who does this

Consideration panel

What you need to do

You’re not required to validate completed misconduct forms, but it’s strongly encouraged.

To contact previous or current employers, you may want to email them first to set up a time or call them directly.

If you use the phone to validate information, it’s hard to verify the identity of the caller or stop the call from being overheard by a third party.

Think about how you can minimise the risk of this and protect the candidate’s sensitive and private information.

You also need to have a way to verify the identity of anyone who needs to release information to you. This includes the preferred candidate, current and former employers.

Some examples of risks here are:

two people may share the same name, date of birth and previous job
a person may have changed their name.

Make all reasonable efforts to verify their identity and previous employment history.

You’ll need to explain the process and confirm the person you’re contacting has the authority to validate the candidate’s information.

We recommend you use the misconduct declaration validation form (DOCX 138KB). The form is a guide as to what information you need to collect.

You must:

send a copy of the declaration and consent form to the past employer
receive a confirmation in writing they’ve received the request.

To then validate the information, they can choose to:

fill out the validation form for you
have you fill out the form over a phone call with them
have you take notes of your conversation.

Always remind the person you’re speaking with that their comments need to:

be honest and fair
not be about the candidate’s protected attributes not related to the candidate’s ability to fulfil the inherent requirements of the role
comply with any confidentiality obligations, such as in a separation agreement.

If someone hasn’t declared any history of misconduct, don’t take this at face value.

Your process must comply with the Information Privacy Principles and best practice records management. Consult the guidance published by the Public Records Office of Victoria guide (PDF, 1MB) to learn about the requirements for records retention that apply to you.

Any information provided to the consideration panel must never be sent to the hiring panel.

All the hiring panel needs to know is if a candidate is suitable for the role.

If you can’t find a record of misconduct

In some cases, it may be hard for you to validate a candidate’s declarations. This could be through poor record-keeping or processes.

If you can’t validate a record, base your decision to hire on the other information you have, taking a risk-based approach.

If you can’t validate the information in the form

You need to record what parts of the candidate’s form you couldn’t validate and the potential risk this may have if you employ them.

This may include things like:

overseas work histories
organisations unable to confirm or locate information about past employees

Seek further information (optional)

This is an optional step if you’re not satisfied you have received all the information you need to make an assessment.

Seek legal advice if you want to do this. The candidate will need to fill out more declarations and give you consent.

Step 6: assess the conduct and make a recommendation

Who does this

Consideration panel

What you need to do

An independent consideration panel:

reviews the completed declarations
validates the information in the declaration with previous employers
assesses any findings of misconduct or adverse conduct history
records their findings and assessment in a confidential report
makes a recommendation to the hiring panel on whether they’re suitable to be hired or not
never share any information with the hiring panel.