(Understanding & Drafting Employment Contracts)

Drafting Employment Contracts

• anatomy of employment contracts
• what key provisions to include
• pitfalls to avoid in drafting
• understanding key employment clauses
• termination clauses
  • notice or payment in lieu
    
  • termination before work starts – liability to damages
    
  • termination by employer’s conduct
    
  • what is repudiation by employer?
    
  • constructive dismissal
• exercises and case-studies
  

  * sample of a badly drafted employment contract
  * sample of good employment contracts

Implied Terms for Employer and Employee and Variation of Employment Contracts

• express terms
• implied terms
• conditions and warranties with their legal effects
• terms incorporated after contract made
• variation in employment contract
  • Williams v Roffrey exception
    
  • fresh consideration
    
  • seal or by deed
    
  • promissory estoppel
• confidentiality clauses to protect confidential information
• non-competition clauses in restraint of trade

Restraint of Trade Clauses

• Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co (1894)
  • interest of the parties concerned and
    
  • interest of the public
• “reasonableness” as between the parties
  • Hanover Insurance Brokers v Schapiro [1994]
    
  • covenant must relate to some proprietary interest of the employer e.g. trade secrets or customer’s connections
    
  • Lansing Linde Ltd v Kerr [1991], - trade secrets
    
  • not to solicit employer’s customers /clients
    
  • VSL Prestressing v Mulholland [1971]- customer connections
    
  • not to work for employer’s competitor
    
  • Alliance Paper Group v Prestwich [1996] restraining employee from soliciting other employees
    
  • Pherdzahara Maneckji Framroz v Nowroji Rustamji Mistri [1933]
    
  • not to set up business in competition with employer
    
  • Res Stewart Jeffries Parker Ginsberg v Parker [1988] held that ‘reasonableness’ must be judged at time of making of contract and not at time of breach
• inducing breach of contract
• restraint clause must not be wider than necessary in terms of
  • period of limitation
    
  • geographical area of limitation
    
  • scope of limitation
  - Commercial Plastics Ltd v Vincent [1964] - clause wider than
  necessary
  - If covenant is not one indivisible obligation but consists of
  separate and independent obligations, then unreasonable parts may
  be severed and remaining parts enforced (provided severance does
  not affect meaning of remaining parts): Attwood v Lamont [1920]
• Restraint clause to be reasonable from public view-point 
  • Thomas Cowan v Orme [1961]

• Other restrictive clauses

Investigation, Internal Inquiry and Termination Considerations

• Investigation and Internal Inquiry
• misconduct
  • summary dismissal
  • terminate with notice or salary in lieu
• Summary dismissal
  • due cause
    
  • due process
• Requirement for Internal Inquiry
  • employment contract
    
  • Employment Act
    
  • Fair Employment Practices Guidelines 2007
• Internal Inquiry Process
  
• Show cause stage
  
• Investigation
  
• Conducting effective & fair inquiry hearing

Workplace Safety Health Laws

• coverage of the ‘workplace’
  
• liability regime to reduce risks at source
  
• duties of principals
  
• duties of persons at work
  
• duties of employers
  
• duties of occupiers
  
• duties of manufacturers, suppliers & importers
  
• duties of persons who erect, install and modify
  
• duties of hirers who maintains machinery
  
• general penalties for contravention
  
• measures to ensure safety & health of persons at work
  

Work Injury Compensation Laws

• who is a ‘workman”?
  
• who can claim compensation?
  
• who are dependants?
  
• meaning of “out of” and “in” the course of employment
  
• occupational disease
  
• compulsory insurance and exceptions
  
• notice and claim of compensation
  
• procedure, assessment and appeal of compensation
  
• payment of compensation
  
• no 2 claims
  
• difference between 2 claims - the statutory and common law claims
  
• common law damages for negligence