The statutory German 'Right to Question' in a Job Interview - an adoptable Model for Australia?

Seminar paper from the year 2003 in the subject Law - Civil / Private / Industrial / Labour, grade: D - good, Bond University Australia (Law School), course: Labour Law, language: English, abstract: In the past three decades a rapid growth of internationalisation andglobalisation has taken place in the business world. This developmenthas had a significant effect on the labour market. Nowadays,recruitment, application and selection of personnel takes place in aglobal market. Consequently, Human Resources Management requiresa cross-cultural assessment for hiring international employees. Thisalso includes the different legal systems, which provide diverse rightsand duties. Furthermore, human capital is regarded as a sensitivetopic. Here, the gap between cost-consciousness and efficiency ofconducting business might stand against the protective and supportiverights of the employee. Therefore, the selection of personnel plays acrucial role because employees can not be easily dismissed.One of the elementary steps within the application process is the jobinterview. At this stage, the employer aims to get a holistic image ofhis future employee by asking questions. However, not all questionshave to be answered by the applicant truthfully. Thus, the futureemployer might be not able to gain a realistic picture of the candidate.Some legal systems, such as under the German law, provide thecandidate with an implied “right to lie” which has no effect on the legalvalidity of a contract. Basically, three different question types exist: 1.questions with a duty of disclosure, 2. lawful questions and 3. unlawfulquestions.This paper is primarily designed as a tool for applicants and HumanResources Managers from Germany and Australia, to familiarise themwith the particular rights, duties and consequences of the “right toquestion” in a job interview, with a focus on the German legal system.In the first section , the paper focuses on the general topic of personnelselection with a particular focus on the recruitment process and the role of the job interview as a part of this procedure. The statutoryGerman “right to question”1 in a job interview will also be illustrated inthe first section. The adaptability of the German model to theAustralian legal system will then be examined; the outcome of whichform the substantive conclusions provided in the final section.