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Can I return to my old employer after a legal dispute?

ANSWER

A fascinating question. The first thing that came to my mind was “will this organisation hold the old disagreement against you”? But I quickly dismissed the idea.

Individuals hold grudges; most large organisations, by their nature, can’t. People move into new roles and new organisations, details fade, the dispute vanishes from the corporate memory.

This, then, becomes a legal question. So I asked a lawyer. Cassandra Taylor is an employment law specialist and associate at Maurice Blackburn. She told me this was particularly interesting because so many employees – policemen, teachers, nurses and academics, for example – work in roles where an employer has a monopoly.

“The answer will really depend on the terms of the particular deed.” Ms Taylor said. “If an employee settling a claim knows that they might want to return to the same employer one day, it’s best to deal with this at the time the deed is being prepared so that it can be drafted to account for this.”

A deed of release’s main purpose is to “require the employee to give up their right to bring claims against their employer”, she explained.

Work therapy. Illustration: John Shakespeare

Work therapy. Illustration: John ShakespeareCredit:

In your case, this will be more or less problematic, depending on the scope of the release given.

“If the employee has released the employer from any claim whatsoever, then this would prevent them from bringing a claim against the employer if they returned and things didn’t work out again.” Ms Taylor said.

If this is the case, she recommends negotiating a variation to the deed before returning to work. Most releases in employment deeds, however, are limited in their scope, meaning certain claims can still be pursued.

It’s a similar story for confidentiality obligations. Most confidentiality clauses relate to the terms of settlement. In the case that the clauses are broader than that, you may want to consider renegotiating to avoid putting yourself between a rock and hard place upon your return.

Non-disparagement clauses, Ms Taylor said, are different in that they’re generally drafted more broadly.

“[They] essentially prevent an employee from saying anything negative about their employer, as well as any of their employer’s employees, officers, agents, etc. This may be problematic if the employee returns to work and wants to vent at home or with friends about their new boss or colleagues,” the lawyer said.

“It may also be problematic if the employee wants to make a complaint to the employer about a matter such as bullying once they return to work. While the chances of an employer pursuing a claim for one of these types of breaches are probably quite low, if they did then the employee could be required to pay compensation for any loss and damage caused by their comments.”

Deeds, Ms Taylor says, “are the most sacred kind of agreements that parties can enter into” in the eyes of the law. In New South Wales, for example, a party to a deed has 12 years from the date of any breach to bring a claim. That’s twice the time limit of a contract.

“Deeds of release tend to be very one-sided when prepared by an employer,” she said.

“I would strongly recommend that an employee get legal advice before executing a deed to ensure that it has been drafted to properly reflect his or her understanding of the agreement reached, and ensure that it properly protects their position (and not just that of their employer).”

Doesn’t matter whether your question is about a legal, social or philosophical matter. As long as it’s a problem in your place of work, we want to hear about it.

jonathan@theinkbureau.com.au

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