1 November Challenging an employee's post-employment conduct November 1, 2017 By Reef Admin Employment agreements, Post employment restraint 0 Before challenging a former employee's post-employment conduct, you have to be sure your own house is in order. One employer found out the hard way. The Victorian Court of Appeal recently found that an employer’s breach of an employment contract prevented them from enforcing restraint provisions against a departing employee. An accountant had a falling out with his employer over bonus payments he believed were owed to him. After the employer refused to pay the bonuses, the accountant took steps to set up his own business. The employer sought to enforce the contractual restraint that would have prevented this from happening for 12 months. The Court concluded that the accountant’s interpretation of the bonus provisions was correct and the employer should have paid the bonuses. As the accountant acted within his rights, the employer’s breach of contract ended its right to enforce the restraint provisions once that breach was accepted as a termination of the contract by the accountant. The bottom line Employers who want to enforce restraint provisions in an employment contract should carefully consider their actions where the termination is contested. Similarly, when an employer’s decision is challenged by an employee as a contractual breach (for example, as a wrongful dismissal or underpayment), then a careful assessment of possible scenarios should be made to fully appreciate the possible consequences. Want to learn more? Keeping employment restraints intact by Matthew Robinson is full of tips to help you navigate the process of enforcing post-employment restraints. Questions? Before you consider doing something that may impact your ability to enforce post-employment restraint provisions, call the REEF Helpline on 1300 616 170. Related Keeping post-employment restraints intact Enforcing a post-employment restraint can be extremely complex – and expensive! Matthew Robinson provides tips to help members through the process and maximise their chances of success. Court finds 15km post-employment restraint reasonable One of the most common problems faced by real estate employers is what to do to protect the commercial goodwill of the business from exploitation by ex-employees. REEF's Workplace Relations Advisor, Laura Clark, examines this all to common problem and details a recent Supreme Court case where a real estate employer successfully had a post-employment restraint upheld. The value of post-employment restraints It's a common misconception that a post-employment restraint in an employee's contract of employment isn't worth the paper it's written on. But what if you don't include one? What are the consequences? Social media mishaps: Regulating an employee's posts More and more, industrial tribunals are being called upon to consider the nexus between social media posts and an employee's work where the employee has been terminated by the employer. Ask an expert: Deducting a PI insurance excess from an employee's wages What if an employee's conduct results in a claim against the agency's professional indemnity insurance policy? Can the amount of the excess be deducted from the employee's wages? Post-employment breach costs new employer A recent decision by the Full Court of the Federal Court of Australia marks new territory in the scale of remedy for post-employment breaches with a new employer hit with a $6.5 million order. Comments are closed.