Under Section 18 of the Australian Consumer Law, (which forms part of the Competition and Consumer Act 2010) any conduct which is deceptive and misleading in nature or is likely to deceive or mislead, is unlawful in trade or commerce.

The Australian Consumer Law not only prohibits deceptive and misleading conduct in any supply of goods or services, but also creates a broad, economy wide norm of conduct.

Deceptive and Misleading Conduct

It is an unlawful act for an employer or a recruitment agency to make deceptive and misleading representations to a potential employee about:

Nature of employment;

Terms of employment;

Conditions of employment;

Availability of employment;

Any other matters relating to the employment; or

Company’s financial status.

In today’s world, where the market is very competitive and every employer bestows the most lucrative perks and incentives to attract the best employees, it is the primary duty of the employer not to make a false promise. Simultaneously, the employee also shares the same burden of not perpetrating anything or any activity which is deceptive or misleading in nature. At times, employees also provide false information regarding their work experience, remuneration compensations or do not disclose any crucial information which an employer must know prior to the hiring.

There were few instances where employer was held liable for misleading and deceptive conducts. In Morton v Interpro Australia Pty Ltd & Anor [2009] FMCA 423, Mr Morton, a senior sales employee alleged that the company made false representation about its commission based bonus scheme during the negotiations made while accepting the post. He asserted that on the basis of the lucrative bonus, he accepted the offer of employment and relocated from United Kingdom to Australia to join the company. After the commencement of his association with the company, the company abruptly removed the beneficial commission based scheme. The Court held that the representation induced Mr Morton to accept the role and to relocate to Australia. In such circumstances, the representation was found to be a conduct that was misleading and deceptive.

In another case, Moss v Lowe Hunt & Partners [2010] FC 1181, the Plaintiff, Mr Moss worked as a freelancer and took work on a temporary basis from various companies. Lowe Hunt & Partners (Lowe Hunt) was a company for whom Mr Moss used to work on a contractual basis. Lowe Hunt expressed his idea to hire Mr Moss as a permanent employee in its company instead of using him on a contractual basis. While negotiating with Mr Moss in the hiring process, Lowe Hunt made a false representation about the company’s financial position and misrepresented the company as a financially successful agency. Mr Moss banked on this representation and joined Lowe Hunt. After 18 months of his tenure, he visualised the actual condition of the company which was completely different from the representations Lowe Hunt made. Mr Moss was disappointed and claimed damages. The Federal Court after hearing from both the parties and going through all the documents found Lowe Hunt guilty of representing false and misleading statements. The Judge stated it was misleading or deceptive to describe a business as being successful when it did not have the continued support of its parent company and henceforth, ordered damages to be paid to Mr Moss for the losses he suffered.

Over the years, we have represented organisations and executive employees. If your employer/employee has deceived you by making false statements, feel free to contact our team of experts at Owen Hodge Lawyers to provide assistance in such matters.

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Employment Contract after the End of your Employment
Employment Contracts & Awards
What to Consider When Hiring a Contractor
Workplace Rights and Adverse Action
Wrongful Dismissal Vs Unfair Dismissal
Executive Employment Agreements rather then Employment Law
Breach Of Employment Contract / Wrongful Dismissal
Breach Of Fiduciary Duties
Changes to Parental Leave

Disciplinary Matters – Deceptive And Misleading Conduct
Employment Law
Employment Rights – Termination Of Employment
Industrial Law
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Law & Employers
How to deal with Workplace Bullying
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Redundancy & Redundancy Pay
Redundancy of Executive Employees
Restraint of Trade
Small To Medium Businesses And Employment Law
Surveillance in the Workplace
Terminating Employment Contracts
Think twice before Dismissing Employees on Workers’ Compensation
Unfair Dismissal – Not Covered By An Award
When Competitors Steal Staff There Are Legal Consequences
Work Place Safety

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