Invariable claims are made by employees not covered by the unfair dismissal provision of the Fair Work Act on termination of their employment. The claims range from unsubstantiated allegations of serious misconduct, non-payment of the correct notice (and this can include reasonable notice), non-payment of bonuses, commissions or other entitlements and loss of opportunity claims.
In considering a claim or defending a claim it is important to understand how the Court will approach a breach of contract claim. This includes determining if the terms of the contract are clear on their face. If not, should terms be implied in law or fact to make the contract just and equitable or give it business efficacy.
Issues can also arise in determining whether a former contract of employment applies to the employee’s current or most recent employment. If not, then the employee could be entitled to reasonable notice on termination. Other issues can be whether the employer has a discretion to pay a bonus or whether the employee entitled to payment of the bonus regardless of such clause, as it wasn’t based on their performance. Employers should not exercise discretions under contract capriciously or unreasonably.
Additionally, issues can arise when the employer makes pre-contractual promises to the employee, and these are found on commencement of employment not be true. Employers can be liable to significant damages under the Australian Consumer Law for misleading statements and regardless of any entire agreement clauses in the contract of employment.
Employers and employees should exercise caution when alleging the other party has breach the terms of the contract and they elect to cease performing their obligations under the contract, as this could result in a court finding that the latter party was the party guilty of repudiating the contract. For an employee this could have serious consequences, as they could be found to have resigned their employment.
In limited circumstances, a breach of contract by the employer can render any restraint of trade provisions unenforceable. It can also result in the employee making a claim for future wages for loss of opportunity.
At Burke Mangan Lawyers we bring many years of experience and understanding of the law governing the contract of employment. We have assisted employers and employees in relation to claims for reasonable notice, bonuses and future wages. We also have extensive experience in representing employers and employees in breach of contract claims and misleading (Australian Consumer Law) claims. We have a proven track record to obtain you the right outcome.
General Workplace Protection Claims
In Australia this refers to the protection of employees against adverse actions, such as dismissal or discrimination, that are taken by their employer for exercising a workplace right or engaging in certain activities, as outlined in the Fair Work Act.