Deceptive and misleading conduct: Employee rights
The deceptive and misleading conduct of employers account for many of the calls we at A Whole New Approach receive from Australian workers. From false promises during the recruitment process, to inventing false reasons for a dismissal, there’s no shortage of misleading conduct by employers.
In this article, we provide a detailed overview of the key ways employers engage in deceptive and misleading conduct. We outline how Australia’s workplace laws can help protect you from such conduct. And we tell you how you can seek redress and hold your employer accountable through the Fair Work Commission or the courts. Be clear AWNA are not lawyers, but leading workplace advisors and commentators
Deceptive and misleading employer conduct: False promises in recruitment process
Imagine this. You’re in the UK and you hear about a sales job in Australia. You have an interview with the company, who decide to take you on. You then enter negotiations with the company about your salary. During negotiations, the company explains that you will receive a bonus based on a particular formula. Based on this bonus scheme, you decide to take the job.
You sign an employment contract, which doesn’t include any reference to the bonus scheme, and move to Australia. You commence your role at the company, and all goes well for the first 12 months. But then a new management team takes over the company. Your current bonus scheme is scrapped and replaced with a less lucrative one.
Sales manager sues employer for deceptive and misleading conduct
This is what happened to a sales manager Mark Morton in the case Morton v Interpro Australia PTY LTD & ANOR . Mr Morton went on to sue Interpro Australia for damages for its deceptive and misleading conduct with regard to his bonus scheme. Mr Morton alleged that the replacement of his original bonus scheme, which compelled him to take the job and move to Australia, with a less lucrative scheme amounted to a breach of his employment contract.
He also claimed that his employer’s misleading and deceptive conduct induced him to take the job in the first place. This, he argued, breached the federal Trade Practices Act 1974 (which in 2010 was replaced by the Competition and Consumer Act).
Sales manager wins huge payout
The Federal Magistrates Court of Australia agreed with Mr Morton, finding that Interpro’s conduct was deceptive and misleading. It ruled that the company had beached the Trade Practices Act. It also found that Interpro had breached Mr Morton’s employment contract, despite the scheme not featuring in it.
For its misleading and deceptive conduct, Interpro was ordered by the court to pay Mr Morton over $20,000 in damages.
What to do if you were recruited based on deceptive or misleading claims
During the recruitment process, employers of course want to represent themselves in the best light possible. This is in order to attract the best talent and entice them to join their team. However, if an employer engages in deceptive and misleading conduct during the recruitment process, the employee has the power to take them to court and sue for damages.
This could be in a situation where an employer makes promises about a salary increase or a bonus payment. But to receive these benefits, the employee is set unattainable KPIs. Or it could be that the employee was promised these benefits, and achieved their KPIs, but the employer decides to renege on their promise.
Under the Australian Consumer Law (which is part of the Competition and Consumer Act 2010), it’s illegal for an employer to engage in deceptive or misleading conduct with regard to employment that is offered. Under section 36, employers are not entitled to mislead a job applicant with regard to:
- The nature or availability of the employment;
- The terms or conditions of the employment; or
- Other matters regarding the employment.
Such deceptive and misleading conduct that can fall under this provision include any representations about the length of the employment contract. Statements about the future remuneration the employee will receive. Also, any statements regarding the financial position or the size of the employer.
Deceptive and misleading employer conduct: Dismissed under false circumstances
Another way some employers engage in deceptive and misleading conduct is by manufacturing a false reason to dismiss an employee. The false reason is often used as an excuse to dismiss the employee legally, because the real reason they want to dismiss them is illegal. For instance, if they are trying to get rid of an employee because of their religion, race, age or sexuality. Or simply because the employer doesn’t like the employee.
Deceptive and misleading employer conduct: 62-year-old employee dismissed for false reason
One example of deceptive and misleading employer conduct with regard to a dismissal was provided in the case McEvoy v Acorn Stairlifts Pty Ltd . It involved 62-year-old Fenton McEvoy who was employed by NSW based Acorn Stairlifts as a telephone sales advisor in November 2013.
About four months into his employment, Mr McEvoy was summoned to a meeting with Acorn’s National Sales manager in which he was dismissed. Mr McEvoy claimed that in the meeting, the manager told him “I’ve decided to let you go because I feel you don’t fit the culture here.”
Mr McEvoy asking what the manager meant by that statement. The manager initially declined to answer. However when pressed by Mr McEvoy, she listed a number of other reasons for his dismissal. This included Mr McEvoy’s age and that he had a bad back, which according to her, caused him to be “hobbling around the office, limping…”
The manager also said that he was “deaf.” When Mr McEvoy said that he wears hearing aids, the manager expressed doubt that what he was wearing were actually hearing aids. She even said that she believed Mr McEvoy would in the future use his bad back to make a worker’s compensation claim against Acorn.
Employee makes a discrimination claim against Acorn
Mr McEvoy subsequently took Acorn to the NSW Civil and Administrative Tribunal (NCAT) for its deceptive and misleading conduct. He alleged that the company had unlawfully discriminated against him on the basis of age and disability in contravention of the Anti-Discrimination Act 1977 (NSW). In evidence submitted to the Tribunal, Acorn stated that it had dismissed Mr McEvoy for “on-going problems with his performance.” The company, however, didn’t elaborate any further than that.
Acorn’s defense relied solely on a written statement from the manager in which she listed several concerns about Mr McEvoy’s performance. She also denied that Mr McEvoy was dismissed for his age and disabilities. Acorn decided against summoning the manager to testify at the hearing. This meant she wouldn’t provide her side of what was said in the meeting when she dismissed Mr McEvoy. And she could not be cross-examined.
Employer found guilty of deceptive and misleading conduct, Employee wins $30K
This case was one where the word of Mr McEvoy was pitted against that of Acorn, and the Tribunal sided with his version of events. Mr McEvoy gave sworn evidence detailing his account of the dismissal meeting and was cross examined. Mr McEvoy also relied on the witness testimony of two former co-workers who outlined the toxic culture at Acorn.
The Tribunal found that Mr McEvoy’s back injury, hearing impairment and his age were material reasons used by Acorn for his dismissal. The company was ordered to pay him $31, 420 in compensation.
What to do if you’re dismissed for a false reason
If your employer engaged in deceptive and misleading conduct by manufacturing a false reason for your dismissal, there are several options available to seek redress. Depending on the false reason for your dismissal, you can either make an unfair dismissal or general protections claim with the Fair Work Commission. Both these claims must be made within 21 days of your dismissal, so it’s critical that you act fast.
You can make an unfair dismissal claim if you believe your dismissal was harsh, unjust or unreasonable. You can also make a claim if you were the victim of a sham redundancy. That is, a redundancy that wasn’t genuine, but rather used as an excuse to have you dismissed for another reason.
You can make a general protections claim if you believe you were dismissed for a false reason, and if that reason is prohibited in the general protections provisions. Examples of prohibited reasons include your age, sex, sexuality, race – among other characteristics.
Deceptive and misleading employer conduct: Dismissed due to false accusations
Another form of deceptive and misleading employer conduct is when they dismiss an employee by manufacturing a false accusation against them. Australia’s workplace laws stipulate that when an employee is accused of misconduct. Whether it’s bullying, sexual harassment or theft – the employer must conduct a formal investigation into the allegations.
You must be provided with procedural fairness. That is, your employer must provide you with evidence concerning the false accusation against you. And they must give you the chance to respond to the false accusation and provide your side of the story.
An employer must prove any accusation
An employer can’t simply dismiss you without evidence of your misconduct. If they do, you will have a strong unfair dismissal case to make with the Fair Work Commission. This was highlighted in the recent case Gates v Blugibbon Pty Ltd .
It involved an employer that dismissed an employee on the mere suspicion of serious misconduct. However, the Fair Work Commission found that the employer failed to conduct a proper investigation into the serious misconduct. The employee wasn’t notified of the reason for his dismissal and he was denied the chance to respond to the accusations. The Fair Work commission also found that the employer didn’t actually prove that the employee was involved in any wrongdoing. As such, the employee was awarded $9, 050 in compensation.
Can I sue for defamation if falsely accused?
An unfair dismissal claim can help you seek redress if your employer has engaged in deceptive and misleading conduct to dismiss you based on a false accusation. But what if you haven’t been dismissed? In that case, you could potentially sue the individual responsible for the false allegation or your employer for damages.
One example of an employee who sued his employer is detailed in the case Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman . It involved a childcare worker who, after having resigned, was defamed in an email by their employer.
In the email, which was sent to parents of children that attended the childcare centre, the employer made a number of false accusations. This included that the former employee was dishonest and conducted himself in a manner that saw him dismissed. The employer also stated that the employee wasn’t a fit person to work in childcare. The employee was informed about this email by one of the parents and sued his former employer for defamation. The District Court of NSW awarded the employee $237,970.22 in damages.
A Whole New Approach can help you stand up for your employee rights
If you were deceived or misled during the recruitment process, and want to take action against your employer, it’s best to get advice. As Australia’s leading workplace relations specialists, we at A Whole New Approach can provide the expert advice you need.
We can help you make a claim
It’s often hard to know what type of claim you should make with the Fair Work Commission. And not only that, what you need to do to ensure it’s a success. We at A Whole New Approach are Australia’s leading mediators, with deep experience helping workers take action through the Fair Work Commission.
In the last 20 years, we’ve helped over 16,000 Australians make unfair dismissal and general protections claims through the Fair Work Commission. You can benefit from our no win, no fee service fee and we offer a free initial consultation. Call us today on 1800 333 666 for a no-obligation discussion about your circumstances. Forced resignations, adverse action, employee rights give us a call
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