Latest publications
Liquidators — examining pre-examination steps
In Brief Examinations under sections 596A and 596B of the Corporations Act 2001 (Cth) are an important method for liquidators to assess the prospects of success and basis for bringing court proceedings as part of the liquidation. However, given the cost and time involved in conducting an examination, it is often…
Directing an employee to go on gardening leave
In Brief When an employment relationship comes to an end, there are various mechanisms available to an employer to protect their business interests from an ex-employee. One such mechanism is to place the employee on gardening leave. Habersberger J of the Victorian Supreme Court described “gardening leave” as a “colloquial or euphemistic…
A flattering performance appraisal can be your undoing
In Brief We all try and see the best in people, right? We have been told that if you compliment and encourage people their behaviour will improve, correct? So, shouldn’t a performance review emphasise the positive to get the best out of your staff? Yet, in a recent decision of the Fair Work…
Recent M&A trends in the food distribution industry
In Brief From their experience working on a number of recent M&A transactions in the food distribution sector, Alistair Jaque, Partner, Andrew Draper, Senior Associate, and Euge Power, Solicitor, highlight some recent trends which have become common themes in M&A transactions in this industry. The Facts 1. Succession planning and staged exits The food distribution industry…
Can the Springboard principle be applied to restrain a former employee?
In Brief Employers have struggled in the past to find ways of restraining a former employee from setting up in competition and from soliciting their clients and their goodwill in the absence of a dedicated restraint of trade covenant contained in the employee’s contract of employment. However, a recent decision of the Federal Court of…
Defamation alleged in relation to teacher performance report
In Brief A recent action in defamation commenced by a person engaged as a casual teacher for a period of 1 month at a country high school, has cast the spotlight on the need for employers generally, to ensure performance processes and assessments are handled with extreme caution. In this instance, the teacher concerned has sued…
Demise of implied term of mutual trust and confidence — High Court decision
In Brief The legal fraternity has been eagerly awaiting the decision of the High Court in the case of Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014). The issue for consideration involves whether in employment contracts, the common law of Australia implies a term of mutual trust and…
Can termination upon reasonable notice still be implied into an employment contract?
In Brief The traditionally accepted notion that an employment contract with no express notice provision may require an employer to provide or pay “reasonable notice” has increasingly come under the spotlight. Generally speaking (absent summary termination for misconduct), when the need to terminate employment arises, notice of termination is required to be…
Legal professional privilege and investigation reports
In Brief A recent decision of the Federal Circuit Court in an adverse action claim, has served to remind us of the pitfalls of lawyers carrying out investigative work for clients and then giving them legal advice based on their investigation. In this case legal professional privilege was held to have been waived…
Request for Flexible Working Arrangements
In Brief When companies receive employee requests for flexible working arrangements, understanding if they can accommodate their employee’s need for flexibility, whilst still maintaining their business and client interests can be a difficult balancing act. In a business environment where there are competing interests between employers, employees and clients it’s difficult to strike the…