Employees and employers may make a claim alleging the other party has breached the employment contract.

Some examples of where this may happen are:

• Where one party considers the other party has not complied with an express or implied term of the employment contract.
• Where an employee considers they have not been given ‘reasonable notice of termination’ of their employment.
• Where an employee does not comply with the restraint of trade, confidential information and/or intellectual property provisions in the employment contract.
• Where an employer unilaterally changes a fundamental term of the employee’s employment contract e.g. hours of work; position; remuneration.

Breach of contract claims are generally commenced in a common law court and not in the Fair Work Commission or Industrial Division of the Federal Circuit Court. However, an employee may make an unfair dismissal claim alleging constructive dismissal i.e. where due to the conduct of the employer, they had no choice but to resign from their employment. Constructive dismissal claims are common and, in this scenario, usually result from an employer changing a fundamental term of the employee’s employment without consulting with the employee and getting their consent to the changes.

How we can help

Employers should speak to one of our experienced Employment Lawyers before making any major change to an employee’s employment; dismissing an employee and where a former employee is acting in breach of a restraint of trade provision in their employment contract.  

Our lawyers have vast experience in common law breach of contract claims where the employer is either the applicant or the defendant. We are also very experienced in resolving and defending constructive dismissal claims.