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tubefeed
25-11-2012, 08:57 PM
We have a part time emp who works 4 days a week with horse configured to be fAmily friendly.
She is due for 6 mth prob review, and we have an issue with lack of productivity.
We have inadvertently discovered that she has set up a business with a partner a couple of weeks ago to do the exact role that she is performing for us - designing.
There is nothing specific in her emp contract that discusses conflict of interest other than an emp confidentiality agreement.
while we think that we prob can't tell her what to do with her day off each week, we can't help but feel that she is being deceitful and that this distraction is impacting on her perf.
We are planning on doi g a perf review where we highlight areas for improvement and will prob suggest a review again in 3 weeks to see if there has been a significant change in productivity.
With regards to the external business....any suggestions on whether we should address this and how?

Moz
26-11-2012, 11:11 AM
We have a part time emp who works 4 days a week with horse configured to be fAmily friendly.
She is due for 6 mth prob review, and we have an issue with lack of productivity.
We have inadvertently discovered that she has set up a business with a partner a couple of weeks ago to do the exact role that she is performing for us - designing. There is nothing specific in her emp contract that discusses conflict of interest other than an emp confidentiality agreement.

It goes without saying that you should have a clause about conflicts of interest and other employment. However, you may be in luck!

The common law implies certain terms into every contract of employment (without the contract having to spell it out).

One of these common law implied contractual terms is the common law duty of fidelity and confidentiality. The common law also implies a term that the employer and employee will not, without reasonable cause, conduct themselves in a manner likely to destroy the relationship of trust and confidence existing between them.

I would suggest that you get some legal advice from a employment law specialist before relying on this in this particular circumstance, but on the surface it appears that you could.

However, you mention that she is up for a 6 month probationary review. If she is indeed still on probation I believe you can terminate simply on the basis that you do not feel comfortable with the employment relationship.

There will probably be other people on here that have a better knowledge of what you can and cannot do when an employee is still on probation and I would suggest that you confirm exactly what your rights are in this regard.

Moz
26-11-2012, 11:18 AM
"While the courts are reluctant to intrude on an employee's spare time (that is, after knock-off time or prior to starting time), they have held that activities that are harmful to the employer's business (such as running a competitive business) may be incompatible with the duty to the employer. "

From here The employee's duty - co-operation, care and fidelity (http://www.lawhandbook.sa.gov.au/ch16s02s02.php)

tubefeed
26-11-2012, 12:27 PM
We have a signed employee confidentialy agreement, however this is worded in a way that it really only applies to protecting our information, documents, processes, etc...and is geared towards protecting us when the emp leaves. It does not expressly address the issue of a side business.

Cottoneyes
26-11-2012, 02:01 PM
Even without bringing in the issue of the competition, her personal life is affecting the productivity. At best this should be enough reason to cease the employment due to the probation period still being in existence, at worse you should be able to give a warning to improve this. You don't need to mention you know about the business, instead just say the feedback is something seems to be causing your productivity to decrease to below acceptable levels, is this something you would like to comment on.
I would also be prepared to walk them directly to the door, if in competition don't give them the chance to copy over client details etc as I've seen occur before during the 'packing up their desk' time

ljd
28-11-2012, 12:12 PM
we have this clause in or contract which was done by legal people, however note the last point re part time

3.2 Where you take up additional employment with another Employer you are required to:-

(a) Advise the organisation of the terms of the other employment; and

(b) Seek the organisations consent to other employment;

3.3 the org reserves the right to refuse consent in clause (b) and prohibit the employment if the employment referred to in clause 3.2 may be in competition with the org, adversely affect the org or inhibit you in the performance of your duties.

3.4 Unless otherwise agreed upon by org and you, you should not ordinarily work in excess of an average of 76 hours a fortnight as a consequence of all combined employment.

3.5 Subject to clause 3.4, nothing in this contract prevents employees employed on a part-time basis to accept extra work at ordinary rates of pay.

as part of the managing the performance issue, you ask for a response and perhaps some wording around Ôs there anything that might be impacting on your ability to do your job that we need to know about outside work...

tubefeed
07-12-2012, 12:58 PM
Well we did a perf review, one of the most unpleasant experiences in my life. The emp broke down sobbing and has a heap of personal issues. I now need to follow up with a letter explaining items discussed such as irregular start and fin times. We have empathy for the situation however the job still needs to be done, and consistency in working hrs is important to the business,
I feel like a crumb but we do have flexible hrs in that the emp has agreed the hrs and it is built into the contract quite clearly that any changes must be in writing and mutually agreed.