As we await the Review of TVNZ’s recruitment practices following the abrupt departure of Kamahl Santamaria, there will inevitably be findings that the state broadcaster dropped the ball in certain areas. This will no doubt lead to a mea culpa and statements to the effect that TVNZ could have, and should have, done better and is sorry for letting its staff and the New Zealand public down.
Unfortunately this scenario has become too common over the past few years with a number of high profile public bodies, including Cycling NZ and NZ Rugby, undertaking employment related reviews and then promising to do better. These undertakings are of course trite and achieve nothing but engender cynicism if real change does not follow.
In Santamaria’s case, it seems that there was no contestable recruitment process. Rather, he had previously worked with Head of News and Current Affairs, Paul Yurisich, at Al Jazeera, and appears to have been shoulder tapped for the role.
Public service agencies have an obligation under the Public Service Act 2020 to notify vacancies in a way that enables suitably qualified people to apply and to then appoint on merit. This ensures transparency in the recruitment process and that the best person for the job is appointed.
TVNZ is not covered by these provisions of the Public Service Act, and so does not have a legal obligation to conduct an open and transparent process. However doing so is surely prudent and the minimum that we would expect of a publicly funded body. It remains to be seen what TVNZ’s internal policies require in this respect and whether they were followed.
The question, though, is whether a contestable process would have made any difference in this case. Such processes typically involve a candidate completing a pre-employment application form disclosing their employment history and personal details, including any criminal convictions. Interviews and presentations may then occur, followed by reference checks.
But even when these processes are conducted by professional recruitment companies, it is difficult to really be sure about the background of any candidate. For example, given Santamaria’s profession, it is highly likely that he would have interviewed well, and his employment history would simply indicate that he had spent the past 16 years at Al Jazerra, which if anything gives the impression of stability and reliability.
What is missing in this process are the references or views of previous colleagues. Over the past few weeks numerous former colleagues have come forward with stories of alleged sexual harassment and unwanted attention by Santamaria. The problem is that New Zealand privacy laws would have made it difficult for TVNZ to uncover this information, even if it had gone looking.
In this regard, the Privacy Act 2020 requires that information is collected directly from the person that it relates to and it can only be sought from third parties if the individual concerned consents. This means that an employer is not legally able to seek references from people who have not been specifically authorised by the candidate. In most cases people provide the names of referees who they know will give them a positive reference and so the employer gets a one sided view.
There are things that a prospective employer can do to attempt to get closer to the truth, and this includes insisting on obtaining references from the most recent employer, including the HR department of that employer and the immediate manager. If this had occurred in Santamaria’s case it seems likely that any history of complaints or misconduct would have been revealed.
A scan of social media is also perfectly legitimate if this information is publicly available.
Employers should also ensure that they ask the right questions in the pre-employment and interview processes. Such questions may include whether the person has ever been subject to an employment investigation or complaints of a serious nature, or dismissed from any role. If the candidate is uncomfortable answering these questions, they may refuse to do so, but this would send a clear signal to the employer to walk away.
So we will wait to see what the Review reveals but I suspect it will be reasonably predictable. What will be of greater significance is whether TVNZ actually changes its culture and approach as a result, meaning no more “jobs for the boys”.
