Employers suffer under Australian employment law. The law favours the Employee. The only way to fight back is with an Employment Contract online. We are a law firm. You are building your Employment Contract online on a law firm’s website. We are the only Australian law firm providing legal documents online. Protect yourself.
Stop an ex-Employee working in his trade or profession?
The government does not want to stop your ex-Employees from working in their chosen trade or profession. Irrespective of what you put in your Employment Contract:
- a financial planner can continue to be a financial planner: see Entello v Firooztash  QDC 50)
- an accountant can continue to works as an accountant, do tax returns and audits
- an electrician can continue to be an electrician
Stop an ex-Employee stealing your clients
You can’t stop the ex-Employee working in his field of expertise. But stealing your clients, suppliers and confidential systems is a different story. In our Employment Contract, you can stop your ex-Employee from stealing your goodwill. This is the same as stopping them from stealing your office furniture or tools.
However, the non-solicitation restraint has to be reasonable. This to both:
- time (after they leave you); and
- the area, such as ‘100 kilometres’ of where they worked.
Are restraints of trade legal?
Have a look at our Sample Employment Contract on how we deal with this issue of both ‘time’ and ‘area’. We put it in stages. If the court thought the ‘time’ restraint was too long, then the court enforces a shorter period. If you didn’t do this then the court may not enforce any ‘time’.
In Entello v Firooztash, the Employer had to go to court. This was to enforce a six-month non-solicitation restraint. This was because the Employment Contract failed to contain the 6-month restraint. Ours does.
Can the ex-Employee ‘solicit’ your clients?
The Court has broadened the concept of ‘solicit’ in favour of the Employer. Our Employment Contracts adopt this better definition.
The Court stated that ‘solicit’ means ‘to ask for business’. That is not new. What about if your ex-Employee does not telephone or email your clients? In other words, the ex-Employee does not expressly ask the client to come and join him. The ex-Employee may not have approached the client at all – it may be the client approaching your ex-Employee.
The ex-Employee is still ‘soliciting’ that is ‘asking for business’ if he gives the impression of wanting the client. It is soliciting if there is any encouragement. This is new law and highly beneficial to you. This is provided that you have an up-to-date Employment Contract online.
Example of ‘solicitation’
- the ex-Employee approaches your client
- the clients ask, ‘how can I move to your new business?’
- the ex-Employee answers ‘you need a letter of appointment. I can’t give you one, but all you need to do is write and sign one’
Our non-competition clause:
- prevents the ex-Employee from unfairly competing with you after termination
- protects your trade secrets, customer and client details, suppliers and your systems
- stop the ex-Employee from stealing your employees
- forces the ex-Employee to leave on the spot and not work during garden leave
Can Employment Contracts go out of date?
Yes, Employment Contracts often go out of date – they are therefore useless. However, our Employment Contract online is subservient to mandatory employment laws. This stops your Employment Contract from going out of date.
Can we amend the Employment Contract?
You and your Employee may wish to alter the Employment Contract. You can alter the Employment Contract by an exchange of emails.
Change the Employment Contract without Employee permission?
We put in a unique set of powers. Change the terms of the Employment Contract without getting your Employee’s permission. This is via procedure manuals and policies. You love the flexibility. We are putting control back into your hands.
Our Employment Contract online fully exploits the benefits of the five major court cases:
- Trust and confidence Commonwealth Bank of Australia v Barker  HCA 32
- Ready and willing to work Australian National Airlines Commission v Robinson  HCA 33; 132 CLR
- Obey implied terms of employment Concut v Worrell  HCA 64; 75 ALJR 312
- Stop perpetual sick leave Re Long Service Leave (Coal Miners) Award (1962)
- Repudiation of the Employment contract Dover-Ray v Real Insurance  FWAFB 2670
A government has a multitude of employment rules and awards designed for one purpose – to protect the Employee. Fight back with our Employment Contract.
Telephone us for help in answering the question. We are a law firm.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
Head Office: 39 Stirling Highway, Nedlands, WA
Mobile: 0477 796 959
National: 1800 141 612