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
In Richardson v Fonterra Cooperative Group Ltd 
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
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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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