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The Lost or Missing Employment Contract

A recent decision of the New South Wales Court of Appeal serves as a strong reminder to employers of the importance in both drafting and maintaining copies of their employees’ contracts of employment.

In Agha v Devine Real Estate Concord Pty Ltd [2021] NSWCA 29 the Court considered appeals from the New South Wales Supreme Court by two real estate agents, Mr Agha and Mr Coombe.

The employer, Devine Real Estate Concord Pty Ltd and related entities, accused Mr Agha and Mr Coombe of obtaining confidential information and competing with the employer in breach of restraint provisions. The Supreme Court in the first instance found that whilst Mr Coombe’s employment agreement was not located, it was probable that it was signed in similar terms to Mr Agha’s employment agreement and the Court found its terms to therefore be enforceable against him.

A common issue in employment law disputes is the lost or missing contract of employment which leads to, as an alternative, evidence as to standard templates used by an employer or other contracts executed at a similar time often being relied on by employers who are seeking to enforce terms such as restraints of trade and confidentiality obligations.

However, in this matter, the New South Wales Court of Appeal found that the trial judge had erred in finding that Mr Coombe had executed a contract of employment in circumstances in which it could not be located. As a result, Mr Coombe was found not to be bound by the express contractual obligations of restraints and confidentiality. The Court otherwise upheld the Supreme Court’s findings as to restraints of trade against Mr Agha.

The Court of Appeal’s decision provides some critical reminders for employers that:

  • it is important to carefully store a copy of each employee’s contracts of employment; and
  • a carefully drafted employment contract with terms as to restraints and confidentiality is vital in helping to protect the company’s interests following the departure of an employee.

Our Commercial and Disputes Teams are able to assist in the preparation of employment contracts and in relation to a dispute you might be contemplating or involved in.

Please contact Rosy Roberts, Principal or Meghan Warren, Principal on rroberts@burkelawyers.com.aumwarren@burkelawyers.com.au respectively, or by contacting our office on + 61 3 9822 8588.

Insight written by Rosy Roberts with special thanks and acknowledgement to Tim Donaghey of Counsel for his Case Note Summary about this matter and the related legal issues dated 22 March 2021.

Contacts

Meghan Warren

Principal

Meghan Warren

Principal
LL.B GAICD B.Bus (FinPlan)
Meghan is one of the few lawyers in Australia admitted in the State (Victoria) and Federal jurisdictions of Australia, and as an Attorney at Law to the New York State Bar in the United States.

Kristy Muhlhan

Principal

Kristy Muhlhan

Principal
LL.B (Hons) GRAD DIP. L.P., GAICD.
Since 2014, she has been an owner and Principal of the firm and has mastered a broad range of essential commercial and business skills which go hand in hand with the work she does for...

Rosy Roberts

Principal

Rosy Roberts

Principal
LL.B (Hons) B.A GAICD
Rosy has extensive experience in Litigation & Alternative Dispute Resolution having represented clients in all Victorian State Courts and the High Court of Australia. She is also a VCAT appointed Administrator.

Anthony Burke

Consultant

Anthony Burke

Consultant
B.A LL.B DIP.FIN. MGT
Tony is an LIV accredited business law specialist and a VCAT appointed Administrator. In 2008 he was President of the Law Institute of Victoria and served for two years as a director of the Law...

Stewart Davis

Associate

Stewart Davis

Associate
LL.B (Hons) B.Com
As well as property law, Stewart has had exposure to VCAT administration matters and commercial law, particularly servicing developer clients.

George Hanger

Associate

George Hanger

Associate
LL.B BA
George was admitted to legal practice in May 2015 after completing a Bachelor of Arts at the University of Melbourne and a Bachelor of Laws at Monash University.

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