NSW Section 18, loss/damage

[Taco Cat]

Manager A takes an interest in a particular job applicant for a position at her company.

Manager A relies on information from Manager B about the application.

Manager B misleads Manager A, telling her that the job applicant didn’t submit a cv, nor respond to a phone call to arrange an interview., when in fact the applicant had submitted a cv, and was never phoned by Manager B.

As a consequence of the actions of Manager B, two things occur:

1. The job applicant is not considered for the job they were likely to be successful in gaining had their application been considered.

2. Manager A sends an email to several managers defaming the job applicant.

My question is this.

Assuming the action of Manager B was of a trade or commercial character in breach of section 18, has the job applicant suffered any loss or damage that can be compensated for under the Australian Consumer Law?

 

[Rod]

No.

Though you may have a claim for defamation, under the Fair Work Act, and maybe under the Anti-discrimination Act depending on other factors.

 

[Tim W]

Assuming the action of Manager B was of a trade or commercial character in breach of section 18, has the job applicant suffered any loss or damage that can be compensated for under the Australian Consumer Law?

I agree with @Rod - no.
That's because your assumption (quoted in italics above) is incorrect.
Employment decisions are a class of transaction to which the Australian Consumer Law applies.

 

[Taco Cat]

I agree with @Rod - no.
That's because your assumption (quoted in italics above) is incorrect.
Employment decisions are a class of transaction to which the Australian Consumer Law applies.

I appreciate your assistance but I don’t understand your point.

Section 31 states:

31 Misleading conduct relating to employment

A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:

(a) the availability, nature, terms or conditions of the employment; or

(b) any other matter relating to the employment.

In the situation I outlined, it’s arguable that the person seeking employment has not been mislead, (Manager A was). Section 18 has wider application than 31, provided that the action was in trade or commerce. The scenario I have given may or may not be an action of trade or commerce, but assuming that it was (or there would be no chance of success), I’m trying to understand if there’s been any compensable loss. I have figured out that the loss of opportunity to gain the job is probably not a loss, but the defamation, I don’t know. Why should defamation be excluded from 237 below? (I’m not saying it isn’t excluded. I’m just too ignorant to understand why it would be excluded).

237 Compensation orders etc. on application by an injured person or the regulator

(1) A court may:

(a) on application of a person (the injured person ) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:

(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or

(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or

(b) on the application of the regulator made on behalf of one or more such injured persons;

make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.

 

[Tim W]

Going only by what you've said here, missing acts missing
and with any ifs, but, maybes, unlesses, and exceptions not allowed for,
consider that section 31 may not apply to you
because it does not seem like it was you who was mislead.

I appreciate your assistance but I don’t understand your point.