Are you Employer or Employee ?


As employment lawyers, we understand the difficulties that employers face ensuring that employees act in the best interests of a business.

There are usually three reasons that problems arise:

  • there is no employment contract.
  • the employment contract is not sufficient to protect the needs of the business.
  • an employee does not abide by the terms of their contract and their common law obligations.
  • an employee takes action against the employer.

Employment Contracts

Benefits of a Well Drafted Employment Contract

As employment contract lawyers, we know that “one size doe not fit all” when it comes to employment contracts.

The benefits of a tailored, professionally drafted and presented employment agreement is that:

  • your interests as an employer are protected, the issues have been thought through by you upfront, thereby protecting your business.
  • your new employee sees that you are organised business.
  • employees know where they stand on important matters – that is, they know what their obligations are, which usually help them be better employees.
  • Adds value to your business should you wish to sell.

We make sure they are also “business-specific”, to ensure the right clauses are included for your circumstances. An employment contract not only protects you as the employer when things go wrong but also prevent many problems from occurring in the first place.

Some of the specific issues that are dealt with in an employment contract that will protect you as an employer are:

Employer confidential information

As a business owner or manager, you’re generally conscious of the enormous amount of time, effort and money expended in training employees and developing their expertise. To see that expertise just walk out the door can be a disaster and as employment lawyers we see it all too often where there are poorly drafted agreements in place or worse still, no written agreement at all. This is why in the drafting process of any employment contract we ensure that employers are protected from employees from taking their valuable expertise elsewhere without permission. This expertise forms part of your confidential business information and can be protected.

Employer reputation

The good reputation of your business can be essential to your ongoing success. An employment contract lawyer will include specific clauses into the employment contract that will give you major recourse if an employee damages that reputation after their departure. The more typical benefit of a clause such as this is that it is a huge disincentive to a former employee to even to try, which is ideally what you want.

Restraint of trade

This is often a very important issue. A restraint of trade clause will forbid an employee from working for a competitor or starting/having ownership in a similar type of business in direct competition to your business, at least for a period of time. Drafted properly, and depending upon the role, these clauses are more enforceable than what people often think.

A poorly drafted restraint of trade clause will typically not be enforceable at all. However, a carefully tailored clause will often be very capable of enforcement by a court or act as a proper preventative measure.

When the clause is improperly drafted (and unfortunately there are many “bush lawyer” type contracts out there) there is a real risk that a valuable employee will be “poached” by a rival employer in your industry, not only leaving you with a position to fill, but potentially setting up your competitor with a key person in your business. The result can be devastating at worst, but at the least a very big interruption or setback.

Again, drafted properly, a restraint of trade clause will likely provide a huge disincentive to a key employee (and especially a senior employee) if they are thinking about “jumping ship” to what they perceive to be a greener pasture.

Other inclusions

Some other matters that a contract drafted by a good employment lawyer will include are:

  • detailed and tailored provisions relating to remuneration
  • annual leave
  • sick leave
  • carer’s leave
  • probation
  • grounds for summary termination
  • dress standard and personal behavior as a representative of the company.

By carefully and properly considering of all the above, you as the employer will be firmly in the driver’s seat. Long after the contract is signed you will glad you went to the effort of getting it right. The cost of implementing well drafted and properly tailored employment contracts is typically much less than the obvious commercial damage that can be sustained from a rogue employee.

What can be done if I do not have an employment contract?

If you don’t have a contract, there may still be some common law protections you can rely on. You may also be able to roll out employment contracts across your business for existing and future employees

Employee Disputes

What if an employee breaches their employment contract?

Contact us immediately.

Sometimes, despite having a well-drafted employment contract regime in place, employees may seek to take the risk anyway and behave improperly. Swift and effective action can be taken to enforce your legal rights. If you have an employment contract in place, we can advise you as to the enforceability of the relevant parts of the contract and what can be done about it.

Such action will usually contain the damage, prevent it from going any further. Compensation can be sought from the offending party or parties. We have assisted employers obtain substantial compensation in the past in relation to restraint of trade breaches and theft of confidential information.

Unfair Dismissal and Fair Work Australia Matters

We are employment lawyers who well experienced in handling employee related disputes as follows:

(a) unfair dismissal

(b) breach of employment contract

(c) underpayment

(d) constructive dismissal

If you have been served with documents, you need to act quickly. We have the ability to sort and assimilate substantial factual material quickly that results in competent responses to allegations from employee allegations.

We Are Here to Help

Please contact us if you have questions in relation to the issues above or any other employment matter. We can be contacted on 1300 907 335 or by completing the contact form on this page.


Employment Contracts

Entering into an employment contract with your employer defines what your responsibilities are and sets out terms of your employment

An employment contract will usually include such matters as:

  • Remuneration
  • Hours of work
  • Leave entitlement
  • Restraint of trade (if applicable)
  • Confidential Information
  • Sick leave
  • Carer’s leave
  • Probation
  • Termination
  • Personal behaviour (including social media)

We can provide you concise advice about a proposed or current employment contract and your rights in relation to it.

Restraint of Trade Clauses and Confidential Information – what can I do when I leave?

We are often asked to advise about the effect of restraint of trade clauses and confidential information clauses. Restraint of trade clauses will sometimes have an effect of a person carrying on business with a competitor. Similarly, confidential information cannot be ported out of a business. The question becomes “what constitutes confidential information?” Each case is different and small nuances can affect the outcome. Careful consideration of the clauses as drafted in relation to current case law is critical in making an informed calculation as to the enforceability of such clauses. When they are enforceable they can give rise to damages claims against an employee.

Employers have legal obligations to treat employees fairly and respectfully. When boundaries are crossed, this may give rise to right for compensation and, where appropriate in the case of a dismissal, reinstatement.

Claims by Employers

We can assist in disputes and litigation involving such matters as:

  • breach of confidentiality
  • restraint of trade
  • other alleged breaches of an employment contract.

If it has been alleged that you have been involved in the above, a prompt, precise response will be beneficial, particularly if the claim is without merit. Even if you do think that you may be in breach in one or more of the above ways, competent legal representation can assist in containing the issues and any damage. We will fight hard to protect your rights.

Mistreatment by your Employer – bringing a claim

We can also assist you in pursing your claim against an employer for such things as:

  • unfair dismissal
  • breach of employment contract
  • underpayment
  • constructive dismissal
  • harrasment

Many employment issues have strict time frames during which you must bring a claim. Prompt action is therefore usually critical.

We Are Here to Help

Call us today on 1300 907 335 to confidentially discuss your situation or by simply complete the form on this page and we will get back to you promptly.

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