Specific misconduct refs “standard” for agency execs

Specific misconduct refs “standard” for agency execs

One of Australia’s leading workplace relations lawyers has said having specific references to issues involving alcohol, drugs, bullying and violence has become increasingly standard in agency executive employment contracts.

B&T Magazine
Posted by B&T Magazine

Joydeep Hor (pictured), the head of the workplace relations firm People + Culture Strategies (PCS), was speaking to B&T about last week's NSW Supreme Court judgment relating to Paul Fishlock’s damages win against Campaign Palace.

Part of the judgment outlines the terms and conditions of employment, and includes one sub-section entitled: ‘Termination by Company “for cause”. In this section there's detailed references to the inappropriate use of alcohol, the use of any narcotics or illicit drugs, and engaging in physical violence, abuse or bad, offensive or inappropriate language or conduct towards any other employee or client.

Hor said that the inclusion of these termination “for cause” references have become standard in most executive employment contracts, and they're not specific to the ad industry where there's the perception of heavy socialising and a boozy culture.

“These types of specifics have become fairly standard in executive contracts… I think there's something to be said for employers being specific about these things,” he said.

Another leading workplace lawyer told B&T that: "It's good practice to list the sorts of things which may crop up from time to time in your industry to avoid the defence that, 'that’s just part of the culture of business''.

Hor added that where agency contracts – executive or rank and file staff – become more complicated is under the termination "for cause" reference: "is seriously incompetent in the performance of his duties".

"It starts to get more controversial when an employer tries to rely on this cause when they deem an employee to be underperforming," said Hor. “Most employees will understand they'll lose their job immediately for serious misconduct, but if they're trying their best but management have formed a view that they’re not doing a good enough job, well that really shouldn’t be a termination for cause,” he said, adding that the employee should instead be worked through a performance management process.