A Fonterra truck driver recently won his unjustified dismissal case after failing to disclose previous criminal convictions in his job application. The Employment Relations Authority awarded the employee a total of $18,000. This case highlights the technical difficulties that can arise for employers when dealing with pre-employment misrepresentations.

In Richardson v Fonterra Cooperative Group Ltd [2013] NZERA Wellington 132, Mr Richardson wrongly thought that his convictions were covered by the Criminal Records (Clean Slate) Act 2004 and as a result he thought he didn't need to disclose his convictions for driving with excess breath alcohol and driving while disqualified (among other convictions) on the job application form.

Mr Richardson answered the questions on the job application form by stating that he had no convictions. The form provided that the Ministry of Justice's website should be visited for further information if the applicant was unsure about what to disclose. The form also clearly set out that providing false or misleading information may be grounds for dismissal. As part of the application process Mr Richardson also consented to a Police check.

About a month after Mr Richardson had commenced employment, Fonterra received the results from the Police check which disclosed he had eight convictions over a seven year period. Fonterra commenced a disciplinary process and found that Mr Richardson had provided incomplete information when questioned about previous convictions and Fonterra had relied on that information in making its decision to hire him – importantly, it was Fonterra's policy to not hire drivers who had driving convictions. Mr Richardson was summarily dismissed and subsequently brought an unjustifiable dismissal claim.

The Employment Relations Authority found that Mr Richardson was unjustifiably dismissed for various reasons including that:

  • Fonterra offered unconditional employment to Mr Richardson. The offer letter and collective agreement made no mention that the offer was conditional upon the Police check.
  • The collective agreement contained a 'completeness clause'. Completeness clauses will commonly state that the written agreement records the entire agreement between the parties and no earlier agreements or representations have any effect. This meant that the representations by Mr Richardson in his job application form did not form part of the agreement between him and Fonterra.
  • The collective agreement made no provision for terminating the employment relationship on the basis of a misrepresentation.

In short, there was nothing in the offer letter or collective agreement which reserved Fonterra's right to rely on a pre-employment misrepresentation to terminate the employment relationship.

The case serves as a reminder to employers to treat pre-employment misrepresentations with caution, whatever the misrepresentation relates to – whether, for example, it's an employee's criminal convictions or their skills and experience.

Any conditions on the offer of employment (such as a Police check) should be included in the offer letter and employment agreements should contain a 'misrepresentation clause' which gives the employer the ability to justifiably dismiss an employee who makes pre-employment misrepresentations.

Where concerns arise about a possible pre-employment misrepresentation, legal advice should be sought.

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