Ah, that thrill of finding the right candidate for the role. It’s like they were destined for us. Dream job. Dream employee. The early days of the relationship, getting to know each other, new and innovative ideas, making things better. It’s working so well. They’ve passed their probation. Everyone is so happy.
BUT.
It goes south. Something happens. And you need to break up. You find out they’re cheating on you with a competitor. You find out that they got so drunk at the Christmas party they did something unmentionable. While naked. You find out that those reports you were getting were, um, full of shiny graphs that made no sense. Or, the relationship just went stale. It happens.
How do you break up fairly? Every court or tribunal will always look first at the legal framework around the relationship – employment contracts, policies, procedures or handbooks, enterprise agreements, modern award provisions and the State and Federal legislation that applies to your employment relationship.
This blog looks primarily at the employment contract. When starting an employment relationship, no one starts the relationship assuming it will all go wrong (except maybe family lawyers). But it’s important to have the right clauses in the contract at the start of the relationship so that you don’t look back in anger.
Do you have a probation clause? This is an opportunity for both parties to see if the relationship will work, and a clear way out for both parties if it doesn’t work out.
Do you have pre-conditions on the offer of employment? This needs to be tailored to the role but may include the right to work in the country, medical checks, reference checks, working with children requirements, criminal records checks, qualifications checks, licensing requirements and/or registration to a professional body. If someone has started work for you but you find out that they don’t actually meet the minimum requirements of the role, you want to be able to take action.
The role title, location, working hours and job duties seem like a simple part of the contract. But what if you expand? Do you want to be able to direct someone to work in your Albert Park store as well as your Fremantle store? Does their role include managing staff? Have you explained their general responsibilities? Is your organisation open on weekends? Nights? What is your expectation of when they are available to work?
In an increasingly blurred work/life world, could someone’s personal activities impact on your business? As they say reputation is hard won and easily lost. If your company sells vegan food products, how will it look if your CEO is photographed eating a steak? Or if you are an animal rights organisation and your CFO takes a photo of their hunting kill while on holiday? You will wish that there were clauses in your contract that can protect you from these sorts of scenarios.
Protecting your confidential business information is likely to be critical to your business. Your business is successful because of how you do things, and if your chief creative officer runs off to a competitor, how can you stop them taking your confidential information and intellectual property? What methods, inventions, technical information, software programs, financial documents, market research, customer lists, marketing strategies has your business spent time and money on that would be devastating for your business if shared with your competitors? Clauses protecting your confidential information and intellectual property are likely to be critical. You can also use clauses such as restraints (where an employee cannot go work for a competitor or poach others to work for the competitor) or notice periods involving ‘garden leave’ that can help minimise any damage from loss of confidential information.
Finally, make sure your pay and leave entitlements are right. If an award applies to your industry and the role your employee does, you need to ensure that you are paying them at least the minimum amounts set out in the award, as well as complying with other requirements of the award. You have probably seen the press regarding underpayments and wage theft, with a number of high profile employers being fined, as well as named and shamed. It’s a tricky area and while there are always some employers who seek to rort the system, the majority of employers simply find this area difficult – get legal advice on this issue, as claims for underpayment of wages can go back six years.
If you want to have a chat about getting your legal documents right at the start, do get in touch. Don’t look back in anger, I heard you say.
Remotely Legal can assist employers and boards on all people issues including conducting independent investigations or preliminary inquiries, training your staff on investigations, providing employment law advice on external complaints, advising on disciplinary outcomes, defending any external claims and implementing any recommendations such as changes to contracts and policies or training on harassment, bullying and discrimination. Feel free to contact us here.
This blog is general advice only, please seek legal advice in relation to your specific circumstances
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