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Did you know that there are four main ways an employment contract can be terminated?
The four ways are: Termination at the employer's initiative - dismissal or constructive dismissal. Termination at the employee's initiative - resignation. Termination by the effluxion of time - a fixed term contract. By mutual agreement. It is the fourth of these...
Are cascading restraint clauses in employment contracts valid and enforceable under Australian employment law?
The answer is - possibly, depending on how well they are drafted.But first, what is a cascading restraint of trade clause?These clauses are also sometimes referred to as "step", "ladder" or "waterfall" clauses.They offer layered restrictions on post-employment...
Restraint of trade clauses in employment contracts – are you handcuffed to your employer?
In Australia, post-employment restraints are often included in employment contracts. They are intended to prevent former employees from competing with their former employer, soliciting their former employer's clients or employees or misusing confidential information...
Are there differences between an adverse action involving dismissal application and an unfair dismissal application under the Fair Work Act?
The answer is "Yes". While they both involve the dismissal of an employee and potential reinstatement and/or orders for compensation, they are otherwise two fundamentally different causes of action.An unfair dismissal application primarily enquires into: 1. Whether...
Should workplace investigators audio record interviews?
The answer is absolutely, “yes”. I have been conducting workplace investigations for nearly 25 years and I will not conduct ANY interview unless it is recorded. There are three main reasons why. First, it saves time as I don't have to write down everything the...
As an employer responding to an unfair dismissal application in the Fair Work Commission, can you spot a jurisdictional objection?
The Fair Work Commission can only deal with unfair dismissal applications that fall within its powers, also known as its 'jurisdiction'. When an employer believes that the Commission lacks jurisdiction to handle an unfair dismissal application or the applicant isn't...
Executive termination without reason – not so quick!
In Australia, many executive contracts have a clause that allows an employer to terminate the contract without giving a reason (or without cause) simply by the giving of a prescribed period of notice or paying the equivalent amount in lieu of notice.And a lot of...
What does s. 361 of the Fair Work Act do and why is it so important for employers to understand?
Section 361 of the Fair Work Act 2009 is an extraordinary provision because it reverses the traditional onus of proof in civil proceedings. Ordinarily it is the plaintiff or applicant that must prove their case to the requisite standard of proof. However, if an...
Is language important when you are issuing a direction or instruction to an employee?
The answer is “yes”.With a few exceptions, employees are contractually obligated to follow any lawful and reasonable direction issued to them by their employer and a failure to do so can have disciplinary consequences for the employee.However, to be a direction, the...
Can the rule in Jones v Dunkel be applied in the Fair Work Commission?
The answer is “yes”. In Australia, when a party to civil litigation fails to call a witness, or lead evidence that is conveniently available to it and this failure is unexplained, a submission may be made by the opposing party that the rule in “Jones v Dunkel” ought...
One of my ex-employees resigned, but is now claiming they were constructively dismissed in an unfair dismissal application to the Fair Work Commission. What is that?
Section 386(1) of Fair Work Act defines “dismissed” to mean when:a. A person’s employment with his or her employer has been terminated on the employer’s initiative; orb. The person has resigned from his or her employment, but was forced to do so because of the...
What is procedural fairness?
Procedural fairness refers to acting fairly in administrative decision making. The expression is often used interchangeably with “natural justice” and is often misunderstood by lawyers and non-lawyers. Put simply - it relates to the fairness of the procedure by which...
