This is the third part of a series of employment law articles by Whitehall Workplace Law discussing some of the legal and practical matters small businesses ought to consider in relation to the employment life cycle of an employee, that is, from the recruiting to the employee ceasing to be employed. Part two of the series published in May concerned understanding minimum conditions of employment and the recruitment process and now, we move to handling claims during recruitment.
During the recruitment process the business should be mindful of not overstating the position or the potential benefits an applicant may receive should they become employed by the business.
Small businesses, particularly those with a desire to expand, can sometimes be tempted to oversell the nature of the position, state of the business or promise the moon to a desired or in-demand applicant when recruiting by making unrealistic representations as to career progression within the organisation and / or the opportunity to receive significant bonuses or increases in pay in the near future once the business’s expansion plans come to fruition. Not only is this conduct likely to result in a disgruntled employee if the promises do not materialise but that employee could have a claim against the business (and potentially its owners and managers) for misrepresentation or for engaging in misleading or deceptive conduct contrary to the Australian Consumer Law.
Representations made to encourage candidates to apply should be accurate and not misleading.
When a suitable candidate is found, the business should refrain from making informal offers of employment. As will be apparent in part four of this series which will focus on the employment contract, it is fundamental that a detailed written employment offer be made (and accepted by the employee) before the employee starts work. Doing so will greatly minimise the potential for misunderstanding between the parties as to what each party’s rights and obligations will be, provide certainty and clarity going forward and give better protection of the business’s interests. Where an employee begins work and is given a contract after they start it can be unclear about whether those terms, or all of those terms, will apply or not. Following some simple recruitment processes can easily avoid these problems.
Jeremy Cousins, Principal, Whitehall Workplace Law
