Employment Agreements - Tips for Dabblers

Let’s be honest.  We are all tempted to “dabble” from time to time.  Especially where you have some good transferable skills, and the time frame is critical or the budget tight.  Close enough can be good enough.  Right?

Well, I give a qualified yes when it comes to Employment Agreements.  But Employment Agreements are really the million-dollar pre-nup of the working class.  When you start the relationship and everyone is excited about working together, they are easy.  When the relationship starts to crumble, they are much more vexed. 

Writing an employment agreement is easy.  The real skill is in anticipating what might go wrong, what the consequences of that might be, and how best to engineer a situation that is advantageous to you in those circumstances.  Things that might seem simple become incredibly complex. 

Take some recent examples: 

- The employer’s employment agreement set out the employee’s hours and days of work (eg 9-12 Monday, 10-4 Tuesday etc), but over time the employee’s hours changed.  The employee later claimed that she was entitled to be paid those prescribed hours, even if she didn’t work them, because there was no evidence that she agreed to a change to those baseline hours.  What became a reasonably complex dispute could have been avoided if the hours of work clause was something as simple as “the employee’s hours of work will be no less than 30 hours per week, to be worked in accordance with the employer’s roster which will be advised no less than 7 days in advance”. 

- The employer had a well drafted trial provision included as an appendix to the employment agreement.  But, the appendix was unsigned and the employment agreement was dated after the employee’s first day of employment.  The employer was unable to rely on the trial period because there was no evidence that the employee met the definition of “new employee” when the agreement was signed. 

- An employee was paid a great salary to be the manager of a business.  The job came with a flat on the premises.  The employee worked hard in the business and treated it as his own, including occasionally doing things where required in the wee small hours.  Turns out, the employee was probably working 24 hours a day, because he was required to respond to incidents in the night time when he was sleeping, and his wage didn’t meet minimum wage standards because of that. 

- The employer had a detailed set of disciplinary provisions in the employment agreement.  They set out an excellent process to be followed in every disciplinary scenario.  When an issue arose, the employer did not use that process, reverting to a more generic (still lawful) process.  The employer’s decision was challenged on the basis that the detailed process the employer agreed to in the employment agreement was not adhered to. 

Each of these are examples of well-drafted employment agreements, but agreements designed without sufficient regard to the possible bad outcomes.  Sadly, there is no manual for employment law – the statutes are overlaid with years of interpretation and development by the Court, and interpretations can change rapidly. 

The other thing that happens is that the world changes and the law doesn’t keep up (which those who try to apply the Holidays Act well know!).  Did you know you still need written consent to pay employees in anything other than cash?  Did you know that employees are entitled to be paid for holidays before they take them?  Provisions dealing with these quirks will appear in most well-drafted agreements, but may be overlooked by a dabbler.

If your employment agreement matters to you, it is worth consulting an expert, and leaving the dabbling for some other area of life.  She says, as she heads off to paint the bathroom!!