In brief

Many employers are surprised to learn that the express terms contained in written contracts of employment are not the only terms that regulate the employment relationship. Common law has long held that terms can be “implied” into an employment contract as a matter of law, fact or industry custom/practice. In other words, these are invisible common law duties and obligations binding on employers and employees. 

Recently, two cases demonstrated the benefit of implied terms for employers in two previously contentious areas, suspension and gardening leave.  

Ability to suspend employee implied into contract

In the first case, Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859, an employer was lawfully able to suspend an employee while undertaking a workplace investigation, despite there being no express suspension clause in the written contract. 

Justice Lee of the Federal Court of Australia held that at common law, an employer has a right to temporarily suspend an employee on full pay for as long as is necessary to undertake and conclude an investigation. This includes situations where the employer is reasonably seeking to determine issues, or find facts relevant to allegations or suspicions of employee misconduct.

A direction to suspend an employee on full pay will be reasonable in circumstances where it is taken to enquire into or investigate allegations of inappropriate behaviour when such behaviour could constitute a risk to the safety, health and welfare of its staff or the duty to provide a safe workplace. 

Ability to place employee on gardening leave implied into contract

In the second case, Grace Worldwide (Australia) Pty Limited v Steve Alves [2017] NSWSC 1296, it was lawful to place a senior employee on three months’ gardening leave when he announced his resignation to join a competitor, even though the employee alleged “repudiation”, because no such clause was contained in the written employment contract. 

The Court ruled in favour of the employer, finding the employer had an implied right to direct the employee to take a period of gardening leave because implying the term was "reasonable and equitable and necessary to give business efficacy to an employment contract so as to avoid contact between an employee and a competitor".

Take away tips about implied terms in contracts

Employers should seek advice about the circumstances where implied terms can be called to the rescue to support disciplinary or dismissal outcomes. In some cases, these invisible obligations can be more important than what is (or more likely, is not) contained in the written contract. 

However, having said that, contemplating and including express provisions in written contracts will avoid disputes arising in the first place. Employment contracts should be reviewed to keep pace with common law developments to ensure rights and obligations are expressly recorded. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.

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