You would think that when an employee does not disclose previous criminal convictions in his application, the emplyer is then entitled to dismiss later on misconduct and breach of trust and confidence grounds.
In this case, however, Fonterra, the employer, lost the dismissal case in the ERA. Unbelievable as it seems, the facts in the case are actually quite unique and fortunately dont set a precedent. Apparently Fonterra relied on the Contractual Remedies Act for its claim of (pre-contractual) misrepresentation. The problem was, however, they raised that argument later during the proceedings, and not at the time of dismissal. At the time of dismissal, they seemed to have argued serious misconduct. That, however, is technically not correct as at the time of applying for a position, no employment relationship exists, hence no misconduct is possible.
What Fonterra should have done is simply relied on the good-faith obligation under the Act. Non-disclosure of criminal convictions goes to the heart of every employment relationship, irrespective whether such non-disclosure occurs at the application stage or later. Good-faith is goes further than misconduct and is therefore capable of covering conduct which is technically not employment related, but so closely linked that it would be artificial to treat it differently.
This was a case the employee should have never been able to win.