‘But Your Honour, I did fulfil due diligence when I employed this person …’
‘So how did you miss these convictions?’
‘Well, I did all the background screening checks, police checks …’
‘How extensive?’
‘Nation-wide, Your Honour. This is our policy. This usually covers everything for us.’
‘But you knew that this person worked abroad for five years just before you employed him?’
‘Well, yes Your Honour but …’
‘So how can you claim complete due diligence on this employee when you failed to find out about their complete career?’
‘I thought the usual checks were all that were due, Your Honour’.
‘So here we are now, mopping up this massive mess that was completely preventable’.
Indeed, due diligence is doing all that is due, which may extend beyond the organisation’s policy and practices. Policy-makers and HR teams may play the blame game when it is too late, but due diligence is a collective responsibility.
Expediting a replacement may take precedence over due diligence, assuming that the short-term benefits will outweigh any risks. But the time saved through incomplete due diligence and short-cuts may cost ten times more in commission hearings, time-off work, legal fees and adverse publicity.
For example, violent behaviour in the workplace may be prevented under WHS law.
What if the new employee became violent at work, but this did not show up in the Australian police (ACIC?) checks because past offences occurred in overseas posts.
Under Work Health and Safety Act 2011, clause 27 stipulates that officers ‘must exercise due diligence’. This legal duty includes ‘taking reasonable steps to acquire and keep up‑to‑date knowledge of work health and safety matters’ in order to ‘eliminate or minimise risks … from work carried out as part of the conduct of the business or undertaking’. This includes risks posed by employees who have a propensity to violence. There is no point displaying ‘Zero Tolerance’ posters while failing to prevent through incomplete due diligence.
What if the new employee had been convicted of fraud or embezzlement, but this did not show up in the financial checks, because past offences occurred in overseas posts.
It may appear logical: if a prospective employee has worked internationally, this should immediately necessitate international checks.
From over 20 years in global experience, the typical ‘excuses’ for failing on international checks are as follows:
‘We don’t have time’ – the turnaround time may be around 10 business days, and the organisation is keen to secure the employee and fill the vacancy asap;
‘We can’t afford it’ – international criminal checks may cost over $120 per country, which is quadruple an Australian criminal check;
‘It’s not our policy’- officers ‘hide’ behind the minimum requirements to tick the compliance box and ‘cover their back.
‘It’s too complicated’ – officers are daunted by the prospect of navigating a network of international law enforcement agencies, with whom they have no prior processes or agreements.
Now let’s unpackage each pathway and explore the invisible iceberg lurking deep beneath the surface.
Time? Responsible employers can prepare a conditional Offer of Employment ‘pending’ the outcome of the international background check. As this process requires the candidate’s written approval, it encourages a confidential conversation and declaration that may not necessarily disqualify or jeopardise the offer. It prevents nasty surprises in the future and enables the employer to ‘protect’ this new employee.
Cost? One international criminal check may ensure transparency and complete due diligence. The real cost of failing in this duty may exceed $10,000 which is more than 100 times the initial check. If an organisation is genuinely concerned about costs, is litigation and exposure for potentially preventable misdemeanours more affordable?
Policy? Ignorance is no excuse and company policies evolve with an ever-changing landscape of laws, pandemics, technologies and best practices. ‘I did my job’ is a pedantic and robotic excuse for failing to exercise common sense when a prospective employee’s CV includes international experience. If the employer genuinely wants to know about the complete candidate there is no point pretending that Australian checks are enough.
Complex? This is why services such as AIS International Group exist, insulating organisations from layers of bureaucracy and enabling a one stop shop. We leverage longstanding relationships with over 180 countries to deliver global verifications on crime, bankruptcy, fraud, money laundering, visas, terrorism and qualifications. This reduces risk and ensures peace of mind for the organisation’s brand name.
However, due diligence is not a one-way street. Major job matching services urge prospective employees to ‘Conduct your own due diligence on any prospective employer and watch out for … recruitment red flags’. They encourage applicants to ‘seek out reviews of the company itself’ such as ‘real feedback from previous employees’ for a ‘balanced, constructive perspective on the company culture and management style you’re about to enter into’.
Beyond and job-seeking site in Australia, Glassdoor provides a global digital suppository ‘where current and former employees anonymously review companies’. This information sharing job-site is built on the foundation of ‘increasing workplace transparency’. Their blogs encourage prospective employees to be honest: ‘If you know something will come up in your background check that may be a concern, address this with your employer as soon as you can’.
But they discourage employers from DIY database searches as they ‘cannot confirm conviction data with the original court; that requires a professional, not an algorithm’. Some employers proactively declare that applicants have ‘lived or worked abroad are required to provide an overseas criminal record check’.
However, as stated in our previous blog, employment advertisements need to declare ‘people with criminal records are not automatically barred from applying for this position’.
Put bluntly, a half-baked job in due diligence may enable the new chef to ‘cook the books’ (pun intended).
