30/07/2002 - 22:00

Notice must be served

30/07/2002 - 22:00


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A RESIGNATION does not necessarily mean the start of a new career.

A RESIGNATION does not necessarily mean the start of a new career. Just consider the case of gun trader Graeme Yukich, who was slapped with an injunction by WA stockbroker Hartleys that delayed him from speaking to Hartleys’ clients and hiring Hartleys’ employees.

The law says that when an employee resigns he or she is required to serve a term of notice and must continue to behave with good faith and fidelity to the employer.

An employee, therefore, cannot use the office computer to set up a competing business, order business cards using the employer’s resources, or, in some cases, solicit contacts or clients gained through his or her employment – either while employed or while serving notice.

Blake Dawson Waldron partner David Parker said every employment contract included a term of notice.

He said that if the term was not written, an implied term existed, which left the courts to determine the length of reasonable notice.

“The length of reasonable notice that will be implied into a contract will depend on the circumstances, including the seniority of the position, length of service and industry standards,” Mr Parker said.

“For senior managers courts have been willing to imply terms requiring six to 12 months notice.”

Mr Parker said employees should continue to work under good faith, which might also include work outside “normal” hours.

“The precise scope of the duty will depend on the nature of the position. The standard will be different for a filing clerk, as compared with a general manager,” he said.

“Generally, conduct outside of work hours will not be caught by the general duties, unless there is a sufficient connection to the employment relationship.”

The idea of “employee duty” means an employee cannot purport to work for a competitor until he or she has served the notice period, something Mr Yukich acknowledged in an apology letter to Hartleys to conclude the legal brawl over client and staff ownership.

“I also regret running an advertisement for my new business featuring individuals as being employed by that business who at the time of the advertisement, as I have been informed by Hartleys and contrary to my belief, were in fact Hartleys’ employees because although each had resigned and ceased working they had not served out their required notice period,” his letter says.


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