Employment Law Termination NSW

Is it wise to place an employee on Gardening Leave following the employee’s resignation?

What is gardening leave?

Gardening leave is when an employee is directed to not attend work, but to remain available to perform normal duties as required.

The arguments in favour of placing an employee who engages in undesirable behaviour are whether intentionally malicious or not) is much harder for an employee to carry out from home.

Some arguments in favour of placing an employee on gardening leave are:

  • It removes an employee who engages in undesirable behaviour from the workplace.
  • It limits the employee’s access to your clients and suppliers.
  • It limits your exposure to the effects of the employee progressively

Some rules about placing an employee on gardening leave

If your contract of employment with the employee includes a term authorising you to place the employee on gardening leave, then you may do so in accordance with the contract.

If there is no term authorising gardening leave in the contract, then more probably than not, the common law will imply into the contract a term requiring you to provide work for the employee. If this is the case, then you will be in breach of the contract if you place the employee on gardening leave.

Are there any risks of placing an employee on gardening leave after a resignation is tendered?

If by doing so you rob the employee of benefits they otherwise would have enjoyed, you may be liable for the loss or damage suffered by the employee. This could be easily quantifiable if the benefits are payments ie commission, bonuses etc. More problematic is quantifying the loss of reputation that may result in some cases. By way of example, if the employee is a TV news reader, any time away from the TV screen comes with the risk of loss of value as a TV news reader.
If when placing an employee on gardening leave you indicate to the employee that he or she is free to secure any other employment, you should be careful to qualify such invitation if you do not want it to nullify a restraint of trade term in the employee’s contract.

Questions and recommendations

If you have any questions about this article please do not hesitate to contact us and as a parting recommendation, have your employment contracts drafted to provide you with sufficient flexibility to require your employee to take gardening leave.

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