John Farren

Australian Employment Lawyer with a National Practice - Law Firm Founder and Owner - Husband - Father, Stepfather, Opa and Master to 1 Labradoodle

[John Farren @john_farren1]

Knowing the law is table stakes for lawyers.

Every client expects their lawyer to know the law. That's the bare minimum, not the differentiator.

Three things separates good lawyers from the rest.

[John Farren @john_farren1]

Two people face the same crisis. One is defeated by the crisis. The other pushes through.

James Lane Allen said, "Adversity does not build character, it reveals it."

But we've also heard, "Whatever doesn't kill you makes you stronger."

So, which is true - does adversity reveal character and resilience, or build them?

I've seen both play out in workplaces over the years. Some people hit a wall and it exposes cracks that were always there. Others go through the same fire and come out genuinely different - more resilient, more capable.

Maybe it's not one or the other.

Maybe adversity reveals who you are in that moment, but what you do next determines who you become.

Think of a moment that tested you. Did it reveal who you already were, or did it change you? Or both?

[John Farren @john_farren1]

@Justiico_ 💯!

[John Farren @john_farren1]

Offering a redundant employee a role with the same title doesn't mean you've offered "acceptable alternative employment".

The recent Fair Work Commission decision in 𝘛𝘩𝘦 𝘚𝘶𝘱𝘱𝘰𝘳𝘵 𝘗𝘦𝘰𝘱𝘭𝘦 𝘗𝘵𝘺 𝘓𝘵𝘥 [2025] FWC 2628 has made that clear.

The employer made a Compliance and Risk Officer role redundant, then offered her the same titled role at two days per week instead of four. Same title. Half the pay.

The Commission dismissed the employer's application to reduce her redundancy pay under s. 120 of the Fair Work Act.

For HR professionals, here's the legal test you need to understand.

Two requirements must be met under s. 120(1)(a) of the Fair Work Act:

1️⃣ The employer must have "obtained" alternative employment for the employee - meaning conscious, intended acts to secure the role. Simply pointing someone to a jobs portal isn't sufficient.

2️⃣ The employment must be "objectively acceptable" - not just acceptable in the employer's view or unacceptable in the employee's view.

So what does "objectively acceptable" mean?

The Commission will assess factors such as:

• Nature of the work;

• Location and travel requirements;

• Pay and conditions; and

• Whether duties represent a narrowing of responsibility or status.

The alternative work doesn't need to be identical, but it must bear "sufficient comparability" to the original work and "𝘪𝘴 𝘯𝘰𝘵 𝘶𝘯𝘳𝘦𝘢𝘴𝘰𝘯𝘢𝘣𝘭𝘺 𝘳𝘦𝘮𝘰𝘷𝘦𝘥 𝘧𝘳𝘰𝘮 𝘵𝘩𝘦 𝘦𝘮𝘱𝘭𝘰𝘺𝘦𝘦’𝘴 𝘰𝘳𝘪𝘨𝘪𝘯𝘢𝘭 𝘥𝘶𝘵𝘪𝘦𝘴, 𝘴𝘬𝘪𝘭𝘭𝘴 𝘴𝘦𝘵, 𝘲𝘶𝘢𝘭𝘪𝘧𝘪𝘤𝘢𝘵𝘪𝘰𝘯𝘴, 𝘦𝘹𝘱𝘦𝘳𝘪𝘦𝘯𝘤𝘦 𝘢𝘯𝘥 𝘰𝘵𝘩𝘦𝘳 𝘵𝘦𝘳𝘮𝘴 𝘢𝘯𝘥 𝘤𝘰𝘯𝘥𝘪𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘦𝘮𝘱𝘭𝘰𝘺𝘮𝘦𝘯𝘵".

Why did this employer fail?

✔️ They did "obtain" the Compliance and Risk Officer role - it was a genuine offer in writing.

❌ But it wasn't "acceptable" because:

• The employee's hours were halved (4 days to 2 days);

• Her pay was halved as a result;

• Additional in-office attendance was required thereby increasing the employee's travel time and costs (2 days instead of 1); and

• The employee's duties were narrowed.

The Commission was clear. Halving someone's remuneration is not objectively acceptable, even if the job title stays the same.

The onus is on the employer to prove acceptability and limiting an employee's statutory entitlement to redundancy pay is a serious step for the Commission.

The main lesson for HR? If you're managing a restructure, don't assume a "similar" role will satisfy the test. Document the comparability carefully before relying on it to apply to reduce redundancy pay.

Have you had to navigate this test in a restructure?

[John Farren @john_farren1]

Rude correspondence from an opposing lawyer always tells me something - just not what they think it does.

It always intrigues me when I read correspondence from a fellow practitioner which is expressed in rude, discourteous or insulting terms.

It doesn’t happen frequently, but it does still happen.

Sometimes it's just a reflection of their personality or their firm.

Sometimes it's that they know the position they are advocating is weak.

Sometimes they think this type of advocacy impresses their client.

Whatever the case, I always assume that it is a sign of some type of weakness.

“Insults are the last resort of an insecure individual with a crumbling position making an effort to appear confident”.

I’ve always subscribed to this saying, although I am not sure who it is properly attributed to.

Courtesy in advocacy is, in my view, a fundamental strength.

It shows that you are above petty insults and that you have confidence in yourself, your client and the argument you are advancing on behalf of your client.

It shows that you maintain professionalism, even in stressful or challenging circumstances.

For admitted legal practitioners in Australia (and I expect in every jurisdiction), it is also a requirement of the professional conduct rules for both solicitors and barristers, a breach of which can attract professional discipline and/or chastisement from the judiciary.

What do other practitioners think?

And clients - does it impress you when your lawyer is rude, discourteous or insulting to the other side?

[John Farren @john_farren1]

What do you do if the respondent/subject employee in a workplace investigation refuses to be interviewed?

Or attends an interview but refuses to answer some or all questions? 

The appropriate approach will always depend on the particular circumstances, including the nature of the allegations and the legal framework in which the investigation is occurring.  

There are also potential differences between public sector and private sector settings.

Of course, the first step is to find out why the employee is resistant to being interviewed.  It may be that you can answer their concerns and move ahead with the interview.

However, if they do refuse, two broad approaches are usually available. 

1️⃣  It may be appropriate for the employer to direct the employee to attend an interview and to answer the investigator’s questions or face potential disciplinary consequences for failing to follow a lawful and reasonable direction. 

2️⃣  The employee could be warned that if they fail to take the opportunity to be interviewed, then any evidence that is adverse to their interests will remain unchallenged and may be accepted by the decision-maker, adverse to their interests. 

There are some cases where the employee may be able to rely on their common law privileges against self-incrimination or exposure to penalty to refuse to attend or answer questions, however that is a very technical issue and must be the subject of specific legal advice relating to the circumstances of the case and employee involved.

Having said that, even if an employee can lawfully rely on such a privilege, the practical consequence is the same as the second approach outlined above – ie. any evidence that is adverse to their interests will remain unchallenged and may be accepted by the decision-maker if it is sufficiently credible.

If something like this comes up in an interview, never be afraid of stand the interview down for a short period to give consideration to your response or to phone a colleague or manager to discuss your approach. It's best to take this time than make a quick decision that could negatively effect your whole investigation.

As I said above, the best and correct approach will depend on a careful analysis of the circumstances of the particular case and requires judgement, discretion and sometimes specialised legal advice.

Do you have additional approaches you have used in this type of circumstance?

[John Farren @john_farren1]

I've reviewed hundreds of workplace investigation reports. Many of them frustrated me.

The problem? The investigator didn't think about who would actually be reading it.

When you sit down to write your report, your audience is potentially:

1. The ultimate decision maker.

2. If you are an external investigator, your internal case manager.

3. Internal ER advisors.

4. In-house Counsel advising the decision-maker, who may or may not be an employment lawyer.

5. External lawyers advising the decision-maker.

6. The parties to the investigation and their representatives, whether from a union or lawyers.

7. If the matter is litigated - tribunal members or judges.

I have been in the shoes of all of the above, except for a Respondent or Subject Employee (fingers crossed), union official or judge.

I've conducted legal reviews of many investigation reports and often felt frustrated because I was not getting what I needed to do my job - or at the least, not easily.

But when I read a really well-written report, where the analysis flows logically, the evidence is cross-referenced properly, and the findings address every element of the allegations, it is a beautiful thing.

So, with so many and varied potential audiences, how do you make sure each will get what they need from your report?

𝗙𝗶𝗿𝘀𝘁, I avoid legalese - I don't use fancy words unless I really know their meaning and correct usage - and then I don't use them anyway - use plain English.

𝗦𝗲𝗰𝗼𝗻𝗱, in the investigation management section of my report, I explain any potential sources of evidence that could not be, or were not pursued and why - eg. witness not available, unwilling to participate, etc.

𝗧𝗵𝗶𝗿𝗱, I include all the relevant evidence in the body of my report and cross reference it to the original evidence attached to my report - don't make your reader have to jump back and forth between your report and the attached evidence.

𝗙𝗼𝘂𝗿𝘁𝗵, I remember that, unlike me, most of my potential audience knows little or nothing about the case so I assume this when I am writing.

𝗙𝗶𝗳𝘁𝗵, my analysis needs to be clear, logical, reasoned and based on the relevant evidence.

𝗙𝗶𝗻𝗮𝗹𝗹𝘆, I ensure the findings deal with all the individual elements of the allegations that I have been instructed to investigate, both factual elements and (if applicable) breach elements.

If you keep these principles in mind when you are writing your report, you will develop a reputation as an investigator that helps each audience member perform their role, rather than hinders them.

What's the most frustrating thing you've encountered when reading an investigation report?

[John Farren @john_farren1]

An employment contract is not an "employee record" under the Fair Work Regulations.

That was the outcome in the recent Federal Court decision of 𝘏𝘪𝘴𝘦𝘯𝘴𝘦 𝘈𝘶𝘴𝘵𝘳𝘢𝘭𝘪𝘢 𝘗𝘵𝘺 𝘓𝘵𝘥 𝘷 𝘕𝘢𝘴𝘬𝘰𝘷𝘴𝘬𝘪 [2025] FCA..

The employee, Mr Naskovski, requested a copy of his employment contract from his employer under r. 3.42 of the Fair Work Regulations, which requires employers to make employee records available for inspection on request.

The primary judge found Hisense had contravened s. 535(3) of the Fair Work Act by failing to provide the contract.

The Federal Court disagreed and allowed the appeal.

Here's the critical distinction that HR professionals need to understand.

Section 535 of the Fair Work Act requires employers to "make and keep" employee records. But what exactly must be kept?

Regulation 3.32 answers this. It requires a record that specifies:

• The employer's name;

• The employee's name;

• Whether employment is full-time or part-time;

• Whether employment is permanent, temporary or casual;

• The date employment began; and

• The employer's ABN.

The obligation is to keep a "record containing this information" - not to keep any specific document like an employment contract.

A contract might contain all this information, but that doesn't make the contract itself a statutory employee record required to be kept by r. 3.32.

Justice Bennett noted that where the Fair Work Regulations do require employers to keep specific documents, they say so explicitly - for example, an agreement to average hours of work (r. 3.35), an agreement between an employer and employee to cash out an accrued amount of leave (r. 3.36(2)) or an individual flexibility arrangement (r. 3.38).

Therefore, the absence of any requirement to keep employment contracts tells strongly against implying one, particularly for a civil penalty provision where obligations must be clear and ascertainable.

So, what does this mean practically?

✔️ Employers must keep records containing the information in r. 3.32, but they can do this in any form they choose (a spreadsheet, HRIS system, etc.)

✔️ Employees can request access to statutory employee records under r. 3.42, but not their employment contract specifically.

✔️ If an employee wants a copy of their contract, that's a separate matter. It's just not a request that triggers the r. 3.42 obligation.

Have you had employees request copies of their employment contracts under the Fair Work Act or Regulations?

[John Farren @john_farren1]

Rude correspondence from an opposing lawyer always tells me something - just not what they think it does.

It always intrigues me when I read correspondence from a fellow practitioner which is expressed in rude, discourteous or insulting terms.

It doesn’t happen frequently, but it does still happen.

Sometimes it's just a reflection of their personality or their firm.

Sometimes it's that they know the position they are advocating is weak.

Sometimes they think this type of advocacy impresses their client.

Whatever the case, I always assume that it is a sign of some type of weakness.

“Insults are the last resort of an insecure individual with a crumbling position making an effort to appear confident”.

I’ve always subscribed to this saying, although I am not sure who it is properly attributed to.

Courtesy in advocacy is, in my view, a fundamental strength.

It shows that you are above petty insults and that you have confidence in yourself, your client and the argument you are advancing on behalf of your client.

It shows that you maintain professionalism, even in stressful or challenging circumstances.

For admitted legal practitioners in Australia (and I expect in every jurisdiction), it is also a requirement of the professional conduct rules for both solicitors and barristers, a breach of which can attract professional discipline and/or chastisement from the judiciary.

What do other practitioners think?

And clients - does it impress you when your lawyer is rude, discourteous or insulting to the other side?

[John Farren @john_farren1]

"If you're not committed to accountability, you are committed to mediocrity."

I was listening to a podcast featuring Greg Hawks, author of 𝘈𝘤𝘵 𝘓𝘪𝘬𝘦 𝘢𝘯 𝘖𝘸𝘯𝘦𝘳 and made this point and I couldn't agree more.

After 20 years in employment law, I've seen this play out hundreds of times.

The difference between professionals who excel and those who stay stuck isn't talent?

It's not even experience.

It's whether they own their outcomes.

Here's what I've observed:

➡️ The mediocre professional says "that's not my job." The excellent one asks "how can I fix this?"

➡️ The mediocre professional waits to be told what went wrong. The excellent one audits their own work before anyone else sees it.

➡️ The mediocre professional blames the system, the client, or the timing. The excellent one looks in the mirror first.

➡️ The mediocre professional waits for their boss to arrange professional development. The excellent one takes responsibility for their own professional development.

This isn't about being harsh on yourself and it's not about letting managers and leaders of the hook.

It's about recognising that accountability is a choice you make every single day.

In my practice, I see HR professionals and lawyers who've been doing this for decades still making basic errors. Not because they lack knowledge, but because they've never held themselves to a higher standard.

And I see relative newcomers who outperform them because they've decided that "good enough" isn't good enough.

Hawks is right. There's no middle ground here.

You're either committed to owning your results, or you've quietly accepted that average is fine.

Which camp are you in?

[John Farren @john_farren1]

Engaging a lawyer to run your workplace investigation doesn't automatically make it privileged.

That's the key takeaway from the Fair Work Commission decision in 𝘊𝘳𝘢𝘧𝘵𝘪 𝘷 𝘊𝘰𝘩𝘦𝘢𝘭𝘵𝘩 [2025] FWC 3285.

Here's what happened.

An employee was accused of misconduct following a client complaint. Cohealth initially ran an internal investigation. When the employee disputed the process and refused to attend an interview, Cohealth engaged its external lawyers who then briefed a barrister to conduct the investigation.

The employee was later dismissed and commenced proceedings in the Fair Work Commission.

The employee then applied to the FWC for an order that Cohealth produce the external investigation report and associated materials.

Cohealth challenged the application and claimed legal professional privilege (LPP) over the investigation report.

The Commission rejected the claim and made the order.

For legal advice LPP to apply, the 𝘥𝘰𝘮𝘪𝘯𝘢𝘯𝘵 𝘱𝘶𝘳𝘱𝘰𝘴𝘦 of the communication must be to obtain or provide legal advice. Not just 𝘢 purpose. The 𝘳𝘶𝘭𝘪𝘯𝘨, 𝘱𝘳𝘦𝘷𝘢𝘪𝘭𝘪𝘯𝘨, 𝘱𝘢𝘳𝘢𝘮𝘰𝘶𝘯𝘵 purpose.

Here, the FWC found Cohealth held multiple purposes:

➡️ An employment disciplinary purpose - to determine whether the employee breached the Code of Conduct and should be disciplined. This purpose existed from the start and continued when the external investigation was commissioned.

➡️ A legal advice purpose - to obtain advice about the complaint made against the employee.

The problem? Cohealth couldn't establish that the legal advice purpose was 𝘥𝘰𝘮𝘪𝘯𝘢𝘯𝘵.

Key factors that undermined the privilege claim:

• Cohealth's own communications described engaging the barrister to "finalise the investigation on our behalf" - language pointing to the disciplinary purpose.

• The investigation was conducted under Cohealth's Workplace Grievance and Misconduct Procedure.

• The outcome letter notified the employee of findings 𝘢𝘯𝘥 disciplinary action - not a preliminary step for legal advice.

• No direct evidence from a Cohealth officer stating the dominant purpose was to obtain legal advice.

Even if LPP had applied, the FWC found Cohealth waived it because the outcome letter disclosed not just the findings, but the evidentiary basis for those findings, which was inconsistent with maintaining confidentiality.

What this means for HR practitioners?

• Don't assume LPP attaches just because lawyers are involved.

• If you want LPP protection, document why you're engaging lawyers and ensure the legal advice purpose genuinely dominates.

• Be careful what you disclose in outcome letters.

• The "dominant purpose" test requires more than a lawyer's say-so. The employer's purpose matters.

Have you had a LPP claim tested in a workplace investigation matter?

[John Farren @john_farren1]

Why is the employee coverage of the Fair Work system different depending on which State or Territory an employee is employed in?

Time for a quick lesson in Constitutional law!

The Fair Work Act 2009 created a national industrial relations system for most Australian workers.

But under the federal system of government we have in Australia, the Commonwealth can only make laws in relation to those topics and issues that the Commonwealth Constitution says it can.

Everything else is for the States to makes laws about.

In fact, if the Commonwealth made a law about something that is reserved for the States to regulate, the Commonwealth law would be "unconstitutional" and could be struck down by the High Court.

However, a State can decide to refer a power to make laws about something that it holds to the Commonwealth - basically where a State says "we normally make laws about this but you, the Commonwealth, can do that now".

So, the legal source of the ability to make laws in relation to the various topics and issues presently covered by the Fair Work Act is a combination of powers reserved to the Commonwealth in the Commonwealth Constitution (eg. corporations power) and State powers referred to the Commonwealth.

For example, in 2009, the Queensland government referred its power to regulate private sector industrial relations to the Commonwealth government.

But Queensland retained the power to make laws for public sector and local government workplaces. Those sectors are regulated by the Qld Industrial Relations Act.

Contrast that with Victoria, where most employees are covered by the Fair Work system, including State government employees, with some exceptions such as senior public servants.

So, now you know why employee coverage of the Fair Work system is different depending on which state or territory an employee is employed in.

Has this State-by-State complexity ever caught you (or your employer) off guard? I'd love to hear the story.

[John Farren @john_farren1]

Most employment lawyers pick a side.

I didn't.

I act for both employers and employees - obviously not in the same matter!

My personal perspective as an employment lawyer.

For years, I've had the privilege of advising and representing both employers and employees.

This unique vantage point isn't just happenstance – it's the foundation of my approach to practicing employment law.

Imagine having a panoramic view of a complex landscape.  That's what it's like seeing issues through the lens of both sides of the employment relationship.

It helps to analyse challenges with greater depth, considering not just legal nuances but also the human and organisational dynamics at play.

This dual perspective also fosters empathy. I've walked beside both types of party. This helps to anticipate each move. It also helps to build bridges.

Deciphering the "why" behind each position helps navigate even the most entrenched disputes and craft solutions that everyone can live with.

Some might view this experience as straddling a tightrope.

I prefer to see it as holding the key to unlocking a more sophisticated, nuanced and effective approach to my employment law practice.

Have you ever wished your lawyer understood the other side's playbook?

[John Farren @john_farren1]

$305,000 in damages. Personal liability for the business owner. And a warning shot for anyone who thinks threatening defamation action will silence a harassment complainant.

That was the outcome in the Federal Court of Australia decision of 𝘔𝘢𝘨𝘢𝘳 𝘷 𝘒𝘩𝘢𝘯 [2025] FCA 874 - and it's a case every employer needs to understand.

Here's what happened.

Ms Magar, a young Nepalese woman on a student visa, worked at a fast food franchise. She alleged her boss, Mr Khan (the sole director and owner), sexually harassed her over several weeks in early 2023. This alleged harassment included showing her pornography, touching her with sex toys and making explicit comments about her body and sexual activity.

Mr Khan's defence? A blanket denial. He said none of it happened.

The Court didn't buy it.

Key takeaways from this decision:

➡️ "Word against word" cases can still succeed. Justice Bromwich found Ms Magar credible despite no corroborating witnesses. Her evidence was "compelling and believable." Mr Khan's blanket denials, without any alternative explanation, weren't enough.

➡️ Workplace culture matters. The Court accepted evidence of a generally sexist environment, including crude comments about female staff and customers made by senior employees, including Mr Khan. While this conduct alone didn't meet the threshold for harassment "in relation to" Ms Magar, it provided context showing how such behaviour could escalate.

➡️ Threatening defamation action = victimisation. After Ms Magar complained, Mr Khan's lawyers sent her two "concerns notices" threatening defamation proceedings. The Court found this was victimisation under s. 47A of the Sex Discrimination Act. The purpose was clear - to stop her from pursuing her complaint. This was found to have caused her real detriment.

➡️ Personal liability is real. Mr Khan was liable both as a fellow employee (s. 28B(2)) and as the person conducting the business (s. 28B(3)). Business owners can't hide behind the corporate structure.

➡️ Damages can be substantial: $160,000 general damages for sexual harassment. $10,000 for victimisation. $5,000 aggravated damages for how the defence was run. Plus $130,000 in past and future economic loss.

Total: $𝟯𝟬𝟱,𝟬𝟬𝟬.

𝗪𝗵𝗮𝘁 𝘁𝗵𝗶𝘀 𝗺𝗲𝗮𝗻𝘀 𝗳𝗼𝗿 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗿𝘀:

• Tolerating sexist workplace "banter" creates fertile ground for escalation.

• Credibility assessments don't require corroboration – the quality of evidence matters.

• Responding to harassment complaints with legal threats can make things significantly worse.

• Train your managers. Document everything. Take complaints seriously from day one.

HR professionals and employment lawyers - what's the biggest mistake you've seen employers make when responding to a harassment complaint?

[John Farren @john_farren1]

Can an employer require staff to work on Christmas Day without asking first?

Not according to the Federal Court in 𝘔𝘪𝘯𝘪𝘯𝘨 𝘢𝘯𝘥 𝘌𝘯𝘦𝘳𝘨𝘺 𝘜𝘯𝘪𝘰𝘯 𝘷 𝘖𝘚 𝘔𝘊𝘈𝘗 𝘗𝘵𝘺 𝘓𝘵𝘥 (𝘕𝘰 3) [2025] FCA 1372.

OS MCAP Pty Ltd operates the Daunia Mine in Queensland. Its employees worked seven-on/seven-off rosters and were paid annualised salaries well above the Black Coal Mining Award, including compensation for public holiday work.

In December 2019, OS told crews they were required to work on Christmas Day and Boxing Day. Employees could apply for leave only if they had “special circumstances” - general family reasons were rejected. Eighty-five employees worked those days without extra pay.

The legal question? Did OS breach the 𝘍𝘢𝘪𝘳 𝘞𝘰𝘳𝘬 𝘈𝘤𝘵 2009 by requiring, rather than requesting, employees to work on public holidays?

Under s. 114 of the FW Act:

• Employees are entitled to be absent from work on public holidays;

• Employers may request work if the request is reasonable; and

• Employees may refuse if the request is unreasonable or their refusal is reasonable.

The Full Federal Court had already ruled that OS contravened s. 114 because a requirement is not a request. The case returned to Justice Rangiah to decide remedies.

His Honour held that there had been no economic loss because the employees' salaries already covered public holiday work.

However, the employees lost the opportunity to refuse and suffered distress from missing family Christmas.

Compensation was awarded for non-economic loss:

• $800–$1,100 for most employees.

• $1,400–$1,700 for seven employees with compelling personal circumstances.

A pecuniary penalty of $15,000 was imposed on OS after his Honour accepted that the breach arose from a genuine and reasonable but mistaken interpretation, yet affected 85 employees. However, it should be kept in mind that the maximum penalty for this contravention at the time it occurred was $63,000 whereas the maximum penalty now is $99,000.

Why does this matter?

✔️ A contract saying “you may be required to work public holidays” does not override the statutory requirement to make a reasonable request.

✔️ Employers must allow employees to refuse on reasonable grounds - family responsibilities count.

✔️ Even without financial loss, courts can award compensation for non-eceonomic loss and impose penalties.

✔️ If your business operates 365 days a year, review your rostering and public holiday processes now. A simple failure to “ask, not tell” can cost you.

Would your current approach pass the “request, not requirement” test?

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[John Farren @john_farren1]

Most employers don't know there's a fourth way to end employment - and it might be the smartest option they never consider.

There are four main ways an employment contract can be terminated?

1️⃣   Termination by the employer - dismissal or constructive dismissal.

2️⃣   Termination by the employee - resignation.

3️⃣   Termination by the effluxion of time - a fixed term contract. 

4️⃣   By mutual agreement.

It is the fourth of these that I want to discuss today.

Sometimes an employment situation isn't working out.

Maybe it's performance that never improved.

Maybe its conduct issues that are creating issues.

Sometimes it's workplace conflict that's poisoning the culture.

A mutual separation agreement is where both parties agree to terminate the employment relationship on agreed terms.

It is a legal agreement that are usually recorded in a Deed.

The typical provisions include:

💠  Recitals or Background section

💠  Definitions

💠  Date of termination

💠  Whether there is to be a payment above the statutory and contractual termination entitlements of the employee called an "𝘦𝘹 𝘨𝘳𝘢𝘵𝘪𝘢" payment, meaning "by favour". This sweetener often makes the difference between a smooth exit and a messy dispute.

💠  A statement of service or reference.

💠  That the agreement is in full settlement of any claims the parties might have against each other and mutual legal releases of those claims.

💠  A Bar to proceedings and indemnification - ie. a party cannot take legal action in relation to any claim they have released the party from and will pay (indemnify) the other party's costs if they try to pursue a claim they have released.

💠  Whether the employee has continuing obligations that survive termination - eg. restraints of trade, confidentiality of the employer's confidential information, etc.

💠  Mutual confidentiality obligations - eg. both parties will keep the terms of the agreement secret, except for in agreed situations like seeking legal or accounting advice.

💠  Mutual non-disparagement obligations - ie. the parties promise not to bag each other out.

This is not an exhaustive list and, like all contracts, the parties can include any provision they like as long as it is not prohibited by some other law (eg. in many jurisdictions an agreement to release an entitlement to make a worker's compensation claim is invalid and unenforceable).

I regularly negotiate mutual separation agreements on behalf of both employer and employee clients.

They are neither an appropriate nor possible option in some situations where employment has gone sideways. 

But in many cases, they allow employers and employees to go their separate ways in a dignified manner and reduce legal risk for both the employer and employee.

What are some of the other provisions you have seen included in them that I haven't listed above?

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[John Farren @john_farren1]

9 double yolk eggs in one carton. What are the odds?

I cracked open the first egg this morning. Double yolk.

Second egg. Double yolk.

By the fourth egg, I'm thinking - is this even real?

Nine eggs in. Nine double yolks.

The odds? About 1 in about almost never (I never did like statistics at uni).

I should've bought a lottery ticket instead.

But it got me thinking about workplace investigations - it didn't really, but it is obligatory that I link this back to a work-based lesson 🤔

Sometimes you get that case where every witness tells the exact same story. Word for word. Perfect alignment.

Your gut tells you something's off.

Just like 9 double yolks don't happen naturally, neither does perfect witness testimony.

Real memories are messy. People remember different details. They often disagree on precise timelines. They focus on what mattered to them.

So when everyone's story matches perfectly, that's your double yolk moment.

Time to dig deeper.

What's the most statistically improbable thing you've witnessed?

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[John Farren @john_farren1]

That email just landed. Your stomach drops.

An employee is suing you. 😱

Or maybe it's a letter of demand threatening legal action.

Or worse - a prosecution from the Fair Work Ombudsman or the health and safety regulator.

What should you do?

The answer is - Panic!

Just kidding.

𝗙𝗶𝗿𝘀𝘁 - take a deep breath.

Just because someone is suing you (or is threatening to) doesn't mean that they actually have a legal cause of action open to them or, if they do, the case has any merit.

𝗦𝗲𝗰𝗼𝗻𝗱 - get legal advice IMMEDIATELY.

Now, of course, a lawyer would say that.

But it is really important.

Your mate's opinion won't help. Neither will ChatGPT. You need someone who knows employment law so that you can make considered, informed and strategic decisions about what to do next...and next...and next…

𝗧𝗵𝗶𝗿𝗱 - preserve evidence Immediately.  Don’t delete emails, text messages, meeting notes, or internal chat messages related to the matter - even if they seem unimportant. These could later become key evidence.

𝗙𝗼𝘂𝗿𝘁𝗵 - if you have management liability insurance, employment practices liability insurance or other relevant coverage, notify your insurer straight away. Late notification can jeopardise your ability to claim.  It will also likely affect who you can engage as your lawyer because many insurers require you to use a law firm on their panel.

𝗙𝗶𝗳𝘁𝗵, when you seek that advice -

(a) Do a little preparation - gather your key documents and prepare a brief chronology of key events - it will help your lawyer understand the situation more quickly and clearly.

(b) Make sure your lawyer gives you an estimate of their costs at the outset and that you understand what they are and are not going to be doing for you.

(c) If you don't understand something your lawyer is saying, ask them to explain it again so you do understand. Sometimes lawyers are not great communicators with people who are not other lawyers!

𝗙𝗶𝗻𝗮𝗹𝗹𝘆 - be strategic, not reactive.  Once the initial shock wears off, remember this: Your business goals (not your emotions) and your lawyers advice should guide your response. A calm, measured and legally informed strategy nearly always leads to a better outcome.

What other tips would you add for employers facing legal action?

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[John Farren @john_farren1]

So many are faking expertise.

In this world that keeps telling us "fake it 'till you make it", the greatest value is still in real expertise.

But real expertise takes time to build.

Doing the same thing over and over.

Practicing.

Correcting.

Perfecting skills.

No shortcuts. No hacks.

If you want to be seriously rewarded, you need to offer serious value.

What skill did you spend years mastering that others try to fake?

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[John Farren @john_farren1]

An employer once said, "What if I train my people and they leave?"

I say, "what if you don't train them and they stay?"

I'm not sure who this quote is properly credited to.

Some say Henry Ford.

Some say Cameron Harold.

I don't know.

But it is wise counsel.

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