The Case

Ms Maxutova was approached by a recruiter on behalf of Nunn Media Pty Ltd (Nunn Media) for the position of Head of Strategy. Ms Maxutova resigned her position with her employer; however her employment with Nunn Media was terminated in the probation period for poor performance.

Ms Maxutova alleged that the recruiter, on behalf of Nunn Media, engaged in misleading and deceptive conduct in breach of sections 18 and 31 of the Australian Consumer Law. Ms Maxutova alleged that during the recruitment process Nunn Media made the following misrepresentations:

• Nunn Media was recruiting Ms Maxutova for a long-term position;
• Nunn Media was an excellent employer that was committed to its employees' wellbeing and work–life balance; and
• Nunn Media was a flexible workplace and had sufficient resources to ensure the team was fully staffed.

Ms Maxutova also alleged that Nunn Media had taken adverse action against her and terminated her employment because she had taken personal leave. Ms Maxutova alleged that when she had requested personal leave, the managing director had replied with a crude response, indicating he did not approve of the request.

The Verdict

The Federal Circuit Court held that the representations (if they were in fact made) were general aspirational statements and there was no evidence that they were untrue. In fact, the evidence showed that Ms Maxutova had not relied on the representations when accepting employment with Nunn Media. Ms Maxutova had accepted employment with Nunn Media because the position paid more and her prior employer had lost a client resulting in her position being made redundant.

In relation to the claim Nunn Media had represented the position was for the long-term, the Court held: “As a person who is used to being in senior roles, the applicant would have known that just because the respondent was seeking a person to be employed on a long-term basis, does not mean that the employee is immune from the employer’s right to terminate the contract in accordance with the terms of the contract.”

The Court also held that the managing director’s response to Ms Maxutova’s request for personal leave was one of exasperation. There was no evidence that Ms Maxutova’s employment had been terminated because of her request to take personal leave.

The Court held Nunn Media did not engage in misleading and deceptive conduct, and it did not take adverse action against Ms Maxutova.

The Lessons

Employers should be very careful what representations they make to potential future employees. While the representations where found to be aspirational and had not been relied upon, the employer was still required to convince the Court of this.

Employers should ensure all employment contracts contain a clear statement that the written contract supersedes all prior representations, agreements and negotiations (oral or in writing) and that in accepting the contract, the employee acknowledges that they have not relied upon any prior representations, agreements and negotiations (oral or in writing).

Employers should also be careful of their reactions when confronted with complaints or requests by employees. While the crude response of the managing director was found to be only exasperation, the employer needed to prove this. In addition, it caused embarrassment to the managing director and the employer in having the response examined by the court.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.