You still have obligations to your employer even if they are not written into your employment contract or you don’t have a written contract. To still need to follow these unwritten (or implied) obligations.
These unwritten duties form part of your employment contract. If you breach them, or your employer does, then it may be a breach of contract. These duties can include that:
If you are a permanent employee, it may be difficult to accept a second job without the permission of your employer. However, this will depend on the terms of your employment contract and the nature of the two jobs.
You may have a specific part of your contract that requires to you get permission of your current employer to work a second job or that prevents you from working another job.
You also have unwritten obligations that may stop you from working another job if it competes with your current job.
If you are a casual employee, whether you work a second job will still depend on what is said in your employment contract.
Accepting work without the knowledge of your employer is likely a breach of your employment contract.
You have duties to your employer to act faithfully and in their best interests. If you accept cash behind your employer’s back, you will likely breach these duties. You would likely have to tell your employer if you were to provide additional work for one of the employer’s clients.
If you breach your employment contract, your employer may have up to 6 years to make a contractual claim and potentially seek compensation.
Your employer may need to offer you something extra if they want to change your employment contract to include a restraint of trade.
You may be able to negotiate with the employer if you want to accept the restraint section being included in your employment contract.
Generally, providing you with your minimum entitlements is not enough to allow your employer to include a restraint in your employment contract because you must be paid these entitlements already.
This may be difficult, but it will depend on your employment contract. Your employment contract may have a specific part that seeks to stop you from taking (or poaching) former colleagues, customers or clients to a new business.
This is called a non-solicitation clause.
This will depend on the type of information you are looking to use. You are unlikely to be stopped from using everyday knowledge that you gain through your normal work experience.
In some situations, your old employer may stop you from using confidential (or secret) information in your new job. They can do this by:
You are more likely to breach your obligations if you are using confidential information or trade secrets (such as client lists or secret strategies).
If your old employer believes that you have breached a part of your contract then they can choose to take legal action against you.
This may include seeking a Court order to stop you from working and they may also seek financial compensation from you for you breaching part of your contract.
Your old employer may have up to 6 years to bring a contractual claim and potentially seek compensation.
If your old employer or your old employer’s lawyer sends you a letter saying you have breached a restraint you should consider seeking legal advice from Circle Green here or a private solicitor here. You may have a limited amount of time to respond before your old employer starts legal action against you.
Generally, your old employer will communicate with you before starting legal action.
If your old employer decides to start court action against you, court documents must be given to you in person so you will be aware if this happens.
Circle Green Community Legal
WA employees can request free and confidential legal assistance with employment and workplace discrimination issues from Circle Green Community Legal.
For further information on our Workplace law services, please visit: circlegreen.org.au/workplace
Law Society of Western Australia