Conduct which is misleading and deceptive can seriously undermine the trust between employers and employees. In this article, we consider the law around misleading and deceptive conduct in the workplace and shed light on how both employees and employers can respond to such conduct, with a particular focus on the implications for employers.

Defining Misleading and Deceptive Conduct

Misleading and deceptive conduct in the workplace is a concept that draws its roots from the broader legal framework of consumer protection laws. In Australia, the primary legislation governing this area is the Australian Consumer Law (ACL), which is part of the Competition and Consumer Act 2010. While the ACL traditionally focuses on consumer transactions, its principles have been extended to employment relationships, recognising the inherent power imbalance between employers and employees.

Misleading and deceptive conduct, as defined by the ACL, refers to actions or representations that create a false or misleading impression. This can include verbal statements, written communication, or even non-verbal conduct that leads to a misconception. In a workplace context, this could manifest in various ways, such as making false promises during the hiring process, inaccurate information about job responsibilities, or deceptive practices related to employee benefits.

Employers and Misleading Conduct

The employer / employee relationship is inherently built on trust. If an employer breaches this trust through misleading conduct, it can have significant legal and reputational consequences. The ACL provides remedies for employees who have suffered loss or damage as a result of misleading conduct, including compensation, injunctions, and damages.

In addition to legal consequences, misleading conduct can harm an employer’s reputation, leading to difficulties in attracting and retaining top talent. Negative publicity resulting from legal actions or public scrutiny can tarnish the company’s image, affecting relationships with clients, customers, and stakeholders. As such, employers should be vigilant in their interactions with employees to ensure compliance with the ACL and maintain a fair and transparent work environment. Particular attention should be paid in relation to recruitment, employment contracts, and adherence to workplace policies.


A common instance of misleading conduct involves employers making false representations to potential employees during the recruitment process. This could include promises of career advancement, specific job responsibilities, or additional benefits that do not materialise after the individual is hired. Such misrepresentations can lead to dissatisfaction, legal claims, and damage to the employer’s reputation.

To mitigate risk, employers should provide accurate and transparent information about the role, company culture, and benefits, during the recruitment process. Any deviations from these representations should be communicated promptly to avoid accusations of misleading conduct.

Employment Contracts

Misleading conduct can also occur through deceptive clauses in employment contracts. Employers must ensure that contractual terms are clear, unambiguous, and reflect the actual conditions of employment. Clauses that are likely to mislead employees about their rights, responsibilities, or entitlements can lead to legal challenges.

Employers should regularly review and update employment contracts to ensure compliance with the law and avoid unintentional misrepresentations. Seeking legal advice from an employment lawyer during the drafting or revision process can help identify and rectify any potentially misleading clauses.

Workplace Policies

Employers may engage in misleading conduct by violating their own workplace policies. For instance, if an employer fails to follow established procedures for performance evaluations, promotions, or disciplinary actions, it can create a false impression of fairness and transparency.

To address this, employers should consistently adhere to their policies and procedures, ensuring that all employees are treated fairly and equitably. Deviations from established processes should be justified and communicated clearly to avoid perceptions of misleading conduct.

Additional Steps for Employers

In addition to the steps outlined above, employers can consider the following proactive measures to avoid misleading conduct:

Comprehensive Training

Ensure that all employees involved in recruitment, human resources, and management are well-versed in the requirements of the ACL and the potential consequences of misleading conduct.

Transparent Communication

Foster a culture of transparency and open communication within the organisation. Clearly communicate expectations, policies, and any changes to employment conditions to avoid misunderstandings.

Regular Compliance Audits

Conduct regular audits of recruitment processes, employment contracts, and workplace policies to identify and rectify any potential sources of misleading conduct.

Legal Guidance

Seek legal advice when drafting or revising employment contracts, especially when introducing new policies or making significant changes to existing ones. Legal professionals can help ensure compliance with the ACL and other relevant laws.

Employees and Misleading Conduct

While the spotlight often falls on employer obligations, employees can also inadvertently or intentionally engage in misleading conduct. This may occur during the recruitment process or in the course of employment. For example, an applicant might exaggerate their qualifications or experience to secure a job, creating a false impression of their capabilities.

In the workplace, an employee may misrepresent their skills or achievements to gain recognition or promotions, potentially impacting the employer’s decision-making process. In some cases, an employee might spread false information about the company’s financial health or engage in deceptive practices that harm the organisation’s reputation.


The employer / employee relationship is one built on trust and transparency. Particularly during the recruitment process, employers should ensure that they do not attempt to induce employees through misleading or deceptive conduct. Similarly, employees should take care not to mislead potential or existing employers about matters such as their qualifications and level of experience.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (03) 9600 2768 or email [email protected].