Executives have particular legal requirements.  As most executives do not have a “safety net” of a modern award, an executive needs to be well advised about:

  • Negotiating their employment contract;
  • Reviewing their contract from time to time during the employment to “negotiate in” or “negotiate out” suitable terms;
  • Understanding where they stand in redundancy;
  • Approaching disciplinary allegations with tact and care;
  • Any protections under the Fair Work Act, their employment contract, and any applicable workplace policies.

Negotiating an Employment Contract?

WorkLegal can help you devise a negotiation strategy and list of desired outcomes to help guide the negotiation process.  An effective negotiation should result in clarity not only about benefits during the employment but around what entitlements you can expect when the employment ends.

Faced with a Workplace Investigation?

Workplace investigations can be very stressful situations.  Careful approach is incredibly important and WorkLegal can help you to navigate the investigation process.

Needing advice on a Separation Agreement or Redundancy?

Sometimes an executive will be offered a separation or redundancy agreement without a lot of notice.  In those cases it is essential to take the opportunity for good advice about what is offered and critically assess, with your legal adviser, how to maximise the opportunities for you.  Consideration needs to be given to financial outcomes as well as reputational and other non-financial matters.

Reputation is everything

At WorkLegal we recognise that your reputation is an asset that you need to protect and cultivate.  Reputational outcomes always need to be front of mind, whether you are negotiating an employment contract, facing a workplace investigation or considering a separation or redundancy agreement. 

Managing Personal Liability Risks

Directors and senior managers are increasingly at risk of a finding of personal liability where the company defaults in its legal obligations, particularly if a company underpays its workforce.   If you are concerned you may be at risk of personal liability you should take personal legal advice urgently.

Contact WorkLegal to arrange a fixed fee consultation to discuss how we can assist you

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Case Study – Microsoft executive receives large payout

A highly paid Microsoft executive relocated to Sydney to work on an important new project.  He was assured that the position would continue for at least 2 years, even though his employment contract contained a 1 month termination notice period.  If his employment continued for 2 years his share options – $14 million – would vest.  His employment was terminated after 1 year 10 months, after a breakdown in his relationship with the directors.

He successfully applied for an order for the NSW Industrial Relations Commission to extend his employment termination notice as an “unfair contract term” under state law, which entitled him to receive the benefit of the share options.

He may not have had that right of action in other states, but other rights of action in equity or consumer law may have achieved the same result.

Canizales v Microsoft Corporation [2000] NSWIRComm 118

Case Study – General protections claim for termination after complaint by high performing executive

A state manager for a software company achieved significant sales and growth results outcomes for the company over some years, and when his employment was terminated his annual salary package was more than $800,000. He came into conflict with some other managers and between 2014 and 2016 made bullying complaints against them, and told HR he was considering legal action.  HR recommended to investigate but the CEO proceeded to terminate the state manager’s employment without the complaints having been properly addressed.  The state manager suffered a profound mental breakdown and subsequently brought a general protections claim against the company.  The court found that the company had taken adverse action against him by terminating his employment for the prohibited reason of having made bullying complaints.   The court was satisfied that the CEO was aware of the bullying complaints and that had an investigation taken place it may have uncovered issues the CEO would have preferred not to address.  The company was ordered to pay more than $5.2million in compensation which included 4 years of future salary losses, compensation for share options, and damages for breach of contract.  The CEO and the company were also ordered to pay fines.

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407

Case Study – Risks of personal liability for directors who shut their eyes to breaches of workplace law

Although managers had been employed to run the companies, two directors knew that employees were not being paid and the companies had run out of money.  The directors offered bonuses to employees if they remained employed, told employees they would be paid soon, and allocated money within the company to contractors.  They continued to operate the companies and employ staff rather than ending their employment (for example by redundancy).  Upon a prosecution by the Fair Work Ombudsman the court found that the directors remained the “controlling mind” of the company, had participated in contraventions of workplace law by the company, and were liable as accessories to breaches by the company.  The court noted that wilful blindness to contraventions of workplace law – ie. deliberately refraining from asking questions or seeking further information in order to maintain a state of apparent ignorance – can amount to being “involved in” a breach of a workplace law.

Fair Work Ombudsman v Priority Matters Pty Ltd & Anor and Fair Work Ombudsman v Superlattice Solar Pty Ltd & Anor and Fair Work Ombudsman v Geneasys Pty Ltd (in liq) & Anor and Fair Work Ombudsman v Silverbrook & Anor and Fair Work Ombudsman v Mpowa Pty Ltd & Anor (No 4) [2019] FCCA 56

Need help?

Don’t leave it too late. Wherever you are in Australia we can help.

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1300 223 398

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Office: 155 Varsity Parade, Varsity Lakes, QLD 4217

Based in Gold Coast Queensland, we assist our valued clients wherever they are in Australia.