Well drafted employment contracts ensure employees are aware of your workplace expectations and can assist with Counselling or protecting your business with defending Unfair Dismissal or General Protections (Adverse Action) claims by former employees. 

Where employees are covered by an Award many of their key terms and conditions are set out in the Award or the National Employment Standards.  

So why have an employment contract? 

Consider the following scenario.

A client had received an unfair dismissal application from a former employee who had been terminated for behavioural issues.

The owner had lost his cool and had not undertaken a formal disciplinary process with the employee and was now legally exposed in the upcoming Fair Work Commission proceedings. He was quite stressed about the matter feeling it was unjust: “how could he claim he was unfairly dismissed after what he did..”

Unfortunately, in such proceedings it’s not simply about the reason for the termination but also the process that was followed – which was quite inadequate. 

While trying to prepare for the initial hearing I reviewed the employee’s file. Thankfully the employment contract was one we had prepared some years ago and contained a comprehensive behavioural expectations clause indicating termination would take place if breached by the employee. 

While this did not equate in value to a formal disciplinary procedure it provided some level of defence allowing us to contain the negotiated financial settlement. Without this clause it would have been open season by the employee’s solicitor on the employer in the settlement process.

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There are a range of beneficial employment contract clauses which are not contained in any Award, such as a behavioural expectations clause, to protect your business. 

The Fair Work system is written for your employees’ benefit – but you can take action to provide a level of protection for your business.    

The following are a number of clauses recommended to be included in all employment contracts: 

• Outlining behavioural/performance expectations and workplace conduct
• Restraint, confidentiality and intellectual property clauses
• Probationary periods 
• Clarifying various requirements such as maintaining a current driver’s license etc 
• Adherence to organisational policies, procedures and safe work practices
• Employee personal appearance standards 
• Limitations on the use of business IT equipment and electronic harassment
• Fitness for work – Alcohol, Drugs and Medication 
• Cooperation with change implementation 
• Posting damaging content about the business on social media

Such contract clauses, when well written, can become the back stop of the employer’s defence in relation to any Fair Work Act General Protections or Unfair Dismissal actions. 

Hunter Employee Relations has developed comprehensive employment contracts with a range of standard terms and conditions to help protect your business.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance