Seemingly innocent statements expose employer to claims29 November 2017 | Employer's Liability
Maxutova was employed by Nunn Media as their Head of Strategy. During her probationary period, Nunn Media terminated Maxutova on the basis that her work did not meet their required standards, citing several marketing projects in which her performance was unsatisfactory. Maxutova alleged the termination was due to illness or injury, in breach of Section 340 of the Fair Work Act, and misleading or deceptive conduct, in breach of Sections 18 and 31 of the Australian Consumer Law (ACL).
- Whether statements made during the recruitment process were misleading and deceptive.
- Whether expression of exasperation during employee illness was indicative of evidence of adverse action.
A Court had to decide whether, at the time that Nunn Media was in the process of recruiting a new employee (Ms Maxutova), it engaged in misleading or deceptive conduct. Maxutova alleged that several representations of Nunn Media and the position were made during the recruitment process, including that:
- Nunn Media was an excellent employer who invested in its staffs’ well-being and work-life balance;
- Nunn Media was a flexible workplace and well resourced, ensuring the team would operate fully staffed;
- Maxutova was being recruited for a long term position.
Maxutova also alleged that she was dismissed because she had taken personal leave, which is in breach of the general protections provisions of the Fair Work Act 2009. In support of this argument, she relied on an email that she received from the Managing Director of Nunn Media. In response to Maxutova’s email telling the company she needed time off to see a doctor, the Managing Director said “WTF” (what the f***).
The Court found that none of the alleged representations (even if they were made) were sufficiently specific to be relied upon. The representations were in the nature of aspirational statements. No misrepresentations had been established and, in any event, none of the alleged representations had been relied upon by Maxutova when accepting employment.
The Court found that Maxutova had left her previous job because it paid less than the job that she had accepted at Nunn Media and, in any event, she faced the prospect of being made redundant in her previous job.
The Court also found that the Managing Director’s comment was an expression of exasperation, and therefore not evidence that injury or illness was a reason for Nunn Media terminating her employment.
This was further supported by evidence that prior to the time of the Managing Director’s comment, Nunn Media had already commenced looking for candidates for a replacement.
Implications for you
Employers should be mindful that statements made prior to the commencement of, or during, an employment relationship may be relied upon by employees in support of various claims. Although the Court found that the statements made by the employer during the recruitment process to be aspirational comments, and that they had not been relied upon by the employee when accepting the role, this was largely dependent on the employer being able to convince the Court of its position, based on the evidence that it was able to provide. Whilst the Court did not find the Managing Director’s comment anything more than exasperation (and not evidence as to reason for termination being related to illness), it highlights the need to avoid such comments in work emails due to their potential implications.