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Poaching Employees and hidden legal restraint risks involved
In a NSW Supreme Court decision handed down by Chief Justice Bergin on 1 May 2013, the court took the unusual step of awarding costs against a non-party employer (Talent2) in a restraint case. Talent2 funded a poached employee's defence to restraint of trade proceedings brought against him by his former employer (HRX). Talent2 was a direct competitor to HRX in the human resources market. HRX became aware of the former employee's new position and it sought to protect its legitimate business interests by seeking undertakings from both Talent2 and the employee. The undertakings required the executive to cease soliciting HRX's clients and to cease working for Talent2 pursuant to the employee's non-solicit and non-compete obligations in his contract of employment with HRX. Talent2 funded the employee's defence, as it initially thought his case was strong and there was benefit for Talent2 in supporting him. However, once Talent2 realised during litigation that ...
31 May 2013Beware new provisions for failing to confirm right to work in Australia
Recent amendments to the Migration Act 1958 (the Act) have introduced new offences which can give rise to civil and criminal liability for body corporates, individuals, executive officers and labour suppliers who fail to confirm whether or not the people they engage are legally permited to work in Australia. New offences and contraventions Under the amendments it will be an offence or a contravention to: Allow or continue to allow an unlawful non-citizen to work; Allow a lawful non-citizen to work in breach of a work related Visa condition; Refer a worker for work with another when the worker is an unlawful non-citizen; Refer a worker for work with another where the referral would put the worker in breach of a Visa work related condition; and Commit aggravated offences by allowing an unlawful non-citizen or referring an unlawful citizen to another for work in the knowledge that the worker will be exploited while doing that wor...
8 May 2013Dismissal for refusing urine test upheld
The following article summarises the Fair Work Commission's (the FWC) recent decision confirming that, in certain circumstances, a refusal by an employee to undertake a drug/ alcohol test is conduct sufficient to justify termination of employment. Background Mr Briggs commenced employment with AWH Pty Ltd (AWH) in January 2011 as a casual stores officer. Mr Briggs was subsequently employed in a full time position in August 2012. On each occasion, Mr Briggs accepted an offer of employment which included specific provisions requiring him to: be familiar with all AWH policies, observe all lawful directions, orders, instructions and policies of AWH; ensure that he was free from the effects of any drugs at all times whilst carrying out his duties; and comply with any requirement to undertake a medical examination and/or drug test to determine his fitness for work. On both occasions, Mr Briggs also attended an induction during which A...
17 April 2013