Employment Contracts
An employment contract is not a matter of one size fits all. At Cosgriff Orchard Legal we can assist employers in tailoring the employment contract to the individual employee and the job that they perform.
We can assist in the drafting of employment contracts so that they incoporate:
• applicable provisions of the modern award
• exclusivity and restraint of trade clauses
• termination of employment conditions and procedures
The employment contract may be a fixed term contract which will expire on a set date or on the happening of a particular event. Otherwise the employment contract will be an indefinite contract which continues until it is terminated by either the employer or employee.
Varying an Employment Contract
An employer cannot vary the employment contract without the agreement of the employee, unless there is an express right in the employment contract to do so. An attempt to vary the terms of the contract without the agreement of the employees may constitute a repudiation of the contract and may allow the employee to terminate the contract and potentially sue for damages.
If you seek to vary an employment contract, it is important that you gain the agreement of your employees. Otherwise you may seek to enter into a new agreement with your employees. If you wish to vary your employment contracts or enter into new contracts we are able to advise you on the best way to go about this without exposing yourself to liability.
Terminating an Employment Contract
An employment contract may be terminated in the following ways:
• At the expiry of a fixed term;
• At the completion of a specified task as set out in the contract;
• By mutual agreement between the employer and employee;
• By abandonment by the employee;
• By unilateral termination by dismissal by the employer;
• By unilateral termination by resignation by the employee.
Reasonable notice
It is important that you seek advice about the reasonable notice entitlements if you intend on terminating an employee. The notice period given to your employee must be no less than that prescribed in the Fair Work Act.
The employment contract may give the employer the right to terminate without notice where there is a serious misconduct on the part of the employee.
Payment in lieu of notice
It is possible to include in the employment contract a provision which allows payment in lieu of notice. In this instance the employer would pay the employee an amount which is equal to that which they would have received had they worked for the duration of the notice period. If there is no provision in the contract allowing for the pay out of notice, the employee must be allowed to work out the notice period, unless the termination is due to misconduct by the employee.
Breach of an Employment Contract
A breach of the employment contract may bring the contract to an end. The party not in breach may elect to bring the contract to an end where there has been a serious or fundamental breach of the contract.
If you believe that there has been a serious or fundamental breach to your employment contract please contact our office for further advice.
