Employment Contracts & Disputes
Negotiating employment contracts for Employers or Employees
Employment law is a complex area of law to understand and is now governed by the Fair Work Act 2009 administered by Fair Work Australia and overseen by the Fair Work Ombudsman. The number and complexity of award structures that exist in different industries add to this complexity as does the ability to seek civil damages.
If you seek sound advice and have a well drafted Employment contract from the start, you can establish a fairer and more stable framework upon which to commence an employment relationship.
We can negotiate and draw up individual Employment Contracts or negotiated workplace agreements, called Enterprise Agreements, to ensure that conditions of employment comply with the National Employment Standards (NES) and all parties are aware of their rights and responsibilities, and the consequences of breaking the contract, from the outset.
Top issues in employment disputes
- Performance review criteria and the assessment of performance
- Transfer of employment (including request to transfer and forced transfer)
- Leave entitlements (including maternity leave)
- Demotion (including demotion after returning from maternity leave or demotion after a company restructure)
- Sexual Harassment
- Dismissal and the necessary grounds for summary dismissal
- Flexible workplace arrangements, changes in hours and shifts
- Non-compliance with the National Employment Standards
- Working conditions
- Misinterpretation of conditions of employment due to implied conditions
Breaches of Contract
If you are an Employer and you discover that your Employee has breached the terms of a Contract with you, you have certain rights to enforce the terms of the contract.
If you would like to talk to an experienced Employment Lawyer about either dismissing an Employee for breach of contract and/or taking action to recover damages, for breach of contract, we can advise you of the likelihood of success and the potential outcomes.
If you are an Employee and you are aware that you are breaching the terms of your Contract and/or have been caught breaching the terms, you have certain possible courses of action that can be taken to minimise damages payable if the Employer seeks to enforce the terms of the contract.
If you would like to talk to an experienced Employment Lawyer about either negotiating the conditions of your employment or seeking to minimise any damages if the Employer wishes to enforce the contract, we are able to advise you of your likelihood of success and the potential outcomes.
There may be instances when Employees feel that they have been discriminated against, verbally or sexually harassed or unfairly dismissed. Please see our section on Unfair Dismissal and Sexual Harassment for more information.
After an employment contract is entered into, if both parties to the contract are in agreement, it may be varied, amended, renewed or extended.
We have successfully acted for Employers and Employees alike in all courts for more than 35 years. Over that time we have seen the same mistakes being made by both parties.
Q. What can I do if my Employee is not performing in their job?
As an employer you have a number of things that you can do to rectify the situation.
Conduct a performance review and notify the employee that they are under performing according to the job specifications detailed in their contract of employment.
Give the employee a specified time period in which to improve their performance and guidelines of what you expect (key performance indicators “KPI’s”).
Conduct a further performance review at the specified time. If the employee is still not meeting their KPI’s, you may be able to dismiss them on the grounds of non- performance.
If you do not want to keep the Employee on as you have assessed that they are not capable of undertaking the job to your requirements, you will need to go through the process of warnings before terminating their contract of employment.
A contract of employment can only be terminated if the employer has undertaken a number of specific actions. If you would like to explore what options you have to terminate the employee’s contract, please contact our office to speak to our Employment Lawyers.
Q. Can I get rid of an employee who has behaved inappropriately? Another employee is claiming that they are the victim of sexual harassment. As the Employer, will I be held liable for my employee’s behaviour?
Claims of sexual harassment are always very complicated as there are two sides to every story. It is important to take the claims seriously as there can be consequences for both the Employee and Employer if the victim makes a claim.
You cannot just fire the alleged offender. Due process must be done in order to protect all parties from litigation and remedy the situation.
The most important thing to do is to gather all the facts quickly and ask us at Cyngler Kaye Levy Lawyers for legal assistance and advice before undertaking any action.
Please do not hesitate to contact us on +61 3 9500 1722 for a quick response to what could be a highly inflammatory situation.
Q. Can I sack an employee without notice? What are some reasons for summarily dismissal?
That depends on what they are doing.
Serious reasons to summarily dismiss an employee are:
- Substantial stealing from the business
- Serious sexual harassment
- Physical damage to the business
- Physical injury to or gross abusive behaviour to employees or customers / clients / patients of the business
- Intellectual property damage eg. posting on websites false and damaging statements about the business
- Selling or releasing in any way confidential information of the business
- Sabotaging hardware or software of the business
It is very important to understand that minor infringements of the above list will not constitute grounds to summarily dismiss an employee, and if done so, the employee may make a counterclaim on you and your business for unfair dismissal.
If you would like to discuss if your situation constitutes immediate summary dismissal, please do not hesitate to have a confidential conference with our experienced employment lawyers to see if you have valid grounds. Call us on +61 3 9500 1722.
Q. I want to employ a friend. Do I really need an employment agreement?
Yes you do need an employment agreement. Especially when it is a friend as any problems become extremely personal and have a tendency to accelerate very rapidly into a full blown fight.
If something goes wrong, even if it was not any fault of yours, you will need the protection of an employment agreement as it sets out the conditions of employment and details dispute resolution pathways.
We can assist you by drawing up a standard employment contract that fits the needs of your business and that you can use each time you employ a new staff member.
If you would like to get the right advice on an employment law issue, please do not hesitate to contact our experienced Employment Lawyers on +61 3 9500 1722, request a cost estimate or email an enquiry.