Articles and legal news from the Atkinson Vinden Team.

HR War Stories

Employment Law

1.  That employee who just doesn’t quite fit!

Sometimes employers find themselves in limbo when there is an employee who is performing poorly, but not poorly enough to sack.  Maybe they are a poor cultural fit.  Maybe they are undermining workplace morale.  Few employers haven’t experienced this sort of employee at some point in time.

Dealing with these employees can be difficult.  Often they are the ones most likely to cause problems if you take them down a performance management path.  A good early outcome can be achieved by offering them some sort of payment to leave (signing a deed of release on the way).  This spares you the painful process of performance management (which itself can be draining on your energy and the morale of your workplace) and also the risk of something like an unfair dismissal claim which will cost you money.

2.   Serious Misconduct:

Sometimes employees will be caught having done something very serious.  Perhaps they have stolen from the company, lied to the company, seriously harassed another employee, gotten drunk on the job, or something similar.

In such cases you will probably want to terminate their employment.  However as a termination of employment is considered very serious action, it is necessary to ensure that you follow the correct procedure.  Terminations are often successfully challenged due to sloppy procedure by employers.

In brief, the correct procedure will involve at least two things in every instance:

a.       Ensure your evidence of the misconduct is sound and reliable; and

b.      Provide the employee with procedural fairness throughout the process.  This means clearly expressing the allegations to them, granting them an opportunity to respond, and considering that response before making your decision.

There is no ‘one size fits all’ approach to take with respect to such matters.  You should seek advice from us before taking any steps in this regard.

3.   Post-employment conduct:

Employees are often the custodians of valuable confidential information belonging to the company.  They are also often the custodians of valuable commercial relationships that they gain as a consequence of their employment (for example, they may develop a close professional relationship with your best paying client or customer).

The risk in such situations is that the employee will leave and repay your trust by using that confidential information to compete with you, or poaching your clients.

You can mitigate this risk by ensuring you have effective protections for confidentiality as well as for restraint of trade. Contrary to popular belief, restraints of trade are enforceable so long as they are drafted properly. Again there is no ‘one size fits all’ approach that can be taken in this regard, and you should seek advice from our HR Lawyers in Sydney about how you can make a restraint effective and enforceable.


Protecting your reputation starts with simplifying the complex. This handy checklist should quickly point you in the right direction and help you understand whether you have a case, and where to start to secure the best possible outocme.