Misleading and Deceptive Conduct Relating to Employment

Schedule 2 of the Competition and Consumer Act 2010 (the Act) makes provisions for misleading and deceptive conduct in relation to employment contracts. Pursuant to s 31 of the Act, a person must not, in relation to employment that is to be, or may be, engage in conduct that is liable to mislead persons seeking the employment as to:

  • the availability, nature, terms or conditions of the employment; or
  • any other matter relating to the employment.

Generally, where a misleading representation has been made, it is up to the:

  • plaintif to adduce evidence that the representations were misleading;
  • defendant to adduce evidence that the representations were made on reasonable grounds; and
  • plaintiff to show that there were no reasonable grounds for making those representations at the time they were made.

In the case of Keays v JP Morgan Administrative Services Australia Limited [2012] FCAFC 100, the Federal Court of Australia heard various arguments made by Mr Keays alleging that JP Morgan had made various representations with respect to future matters relating to his employment. Nevertheless, JP Morgan was able to adduce sufficient evidence to rebut the presumption that the representations were misleading and consequently, JP Morgan was able to successfully defend against the legal proceedings.


  • Prior to initiating legal proceedings against your past employer, you should consider what evidence may be adduced to rebut the presumption.
  • If you are an employer which has hired a recruitment agency to source employees for you, you should have well drafted clauses contained in your agreement which passes on liability to the recruitment agency for any misleading or deceptive representations made to an employee.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.