Employment Law

A contract is the starting point of an employment or service relationship. Whether you are an employee or a contractor, before signing you should understand pay, duties, hours of work, the probation period, bonuses, termination clauses, confidentiality obligations, intellectual property, restraints of trade and non-solicitation clauses.

For employers and businesses, a contract needs to match the actual working arrangements and to meet the minimum legal standards. A template contract that is not updated over time, or that is not adjusted for the role and the business model, can easily give rise to disputes later.

Unpaid-wage disputes can involve base pay, overtime, weekend pay, public holiday pay, allowances, bonuses, commissions, leave pay and superannuation.

An employee who suspects they have been underpaid should, as early as possible, gather payslips, rosters, bank records and records of communications. An employer who discovers a problem with how wages have been calculated or how employees have been classified should review it promptly, to avoid the underpaid amount continuing to grow.

Workplace bullying, discrimination and harassment can occur in day-to-day management, rostering, performance reviews, promotion, the handling of complaints and the dismissal process.

Employees should, as far as possible, record the specific incidents, dates, locations, people involved and any supporting evidence. Once an employer receives a complaint, it should take appropriate steps promptly to prevent the matter escalating further, and ensure the investigation is fair, objective and documented.

Performance management requires clearly identifying the problem, giving the employee an opportunity to respond, and setting reasonable improvement requirements. An employer who simply puts together documents after the fact in order to dismiss the employee later may increase the risk of a dispute.

When an employee receives a warning or a performance improvement plan, they should first confirm the employer’s specific allegations, whether the assessment is accurate, whether they have an opportunity to respond, and what consequences may follow.

Redundancy usually involves a genuine business reason, a duty to consult, the possibility of redeployment, the notice period and redundancy pay. For employees, the focus is on confirming whether the role is genuinely no longer required, whether the process was reasonable, and whether the termination payment is correct. For employers, the focus is on ensuring that both the redundancy decision and the process are well founded.

After being dismissed, an employee should confirm as soon as possible the reason for the dismissal, the last day of work, the termination payment and whether any avenue to challenge it exists. Some applications, such as unfair dismissal, usually have a short time limit — for example, a 21-day limit.

Before terminating employment, an employer should confirm whether there is a valid reason, whether the process is fair, whether the employee has been given an opportunity to respond, and whether there is any risk of adverse action, discrimination or reprisal.

A separation agreement (deed of release) can involve the payment amount, confidentiality, the release of rights, non-disparagement, client relationships, restraints of trade and non-solicitation clauses.

Before signing, an employee should confirm how the restraint clauses will affect arrangements for their next job; an employer needs to ensure the exit arrangements are clear, the payment is correct, and its commercial interests are reasonably protected.