Direct­ing an employ­ee to go on gar­den­ing leave

In Brief

When an employ­ment rela­tion­ship comes to an end, there are var­i­ous mech­a­nisms avail­able to an employ­er to pro­tect their busi­ness inter­ests from an ex-employ­ee. One such mech­a­nism is to place the employ­ee on gar­den­ing leave. Habers­berg­er J of the Vic­to­ri­an Supreme Court described ​“gar­den­ing leave” as a ​“col­lo­qui­al or euphemistic term for an employ­er insist­ing that an employ­ee, who has giv­en notice, stay away from work for the dura­tion of the notice peri­od, whilst con­tin­u­ing to pay the employ­ee’s remuneration.” 

Advan­tages of Gar­den­ing Leave

A key advan­tage of gar­den­ing leave is that the employ­ee is not present at the work­place. This helps pro­tect the employ­er from an employ­ee col­lect­ing con­fi­den­tial infor­ma­tion or solic­it­ing clients or oth­er employ­ees to leave the busi­ness with them. Anoth­er advan­tage is that the employ­ee is still tech­ni­cal­ly employed, mean­ing the employ­ee is still bound to com­ply with rea­son­able direc­tions from their employ­er, includ­ing being direct­ed to work from home, and pro­vid­ing assis­tance with hand­ing over to a new employ­ee. The employ­ee also remains bound by con­trac­tu­al oblig­a­tions which exist dur­ing the cur­ren­cy of the employ­ment rela­tion­ship. These often include such things as an express pro­hi­bi­tion on work­ing for some­one else, and act­ing in the best inter­ests of the employ­er. There are also oblig­a­tions implied at com­mon law such as an employ­ee’s duty of fideli­ty which con­tin­ue dur­ing the gar­den­ing leave period.

Who can be direct­ed to go on gar­den­ing leave?

If an employ­ment con­tract express­ly pro­vides for gar­den­ing leave, there is gen­er­al­ly no argu­ment around whether it is law­ful or not for the employ­er to direct an employ­ee to go on gar­den­ing leave. Where the employ­ment con­tract is silent on this top­ic, the ques­tion aris­es as to whether the employ­er may still law­ful­ly direct an employ­ee to go on gar­den­ing leave or not.

The answer to this ques­tion will be informed by whether the con­tract of employ­ment is one that requires the employ­er to pro­vide the employ­ee with work or mere­ly to pay the employ­ee the remu­ner­a­tion required under the con­tract. The two cat­e­gories of con­tract were explained by Lawrence LJ in Marbe v George Edwards (Daly’s The­atre) Ltd as fol­lows:

​“Con­tracts of employ­ment fall under two cat­e­gories; first those in which the only oblig­a­tion imposed upon the employ­er is the pay­ment of the agreed remu­ner­a­tion, and no duty is cast upon the employ­er to give active occu­pa­tion.…..; and sec­ond­ly those in which the employ­er engaged not only to pay the agreed remu­ner­a­tion but also to afford to the employ­ee an oppor­tu­ni­ty of doing work for which he is engaged”.

A con­tract which falls into the sec­ond cat­e­go­ry may do so by express words or by virtue of the type of work per­formed. The courts have found that where an employ­ee has a par­tic­u­lar skill or tal­ent which needs to be kept in reg­u­lar activ­i­ty, such as a sur­geon or tele­vi­sion per­son­al­i­ty, the court may be pre­pared to find, where there is no express oblig­a­tion to the con­trary, that there is an oblig­a­tion on the part of the employ­er to pro­vide the employ­ee with work.

An exam­ple of such employ­ment requir­ing the pro­vi­sion of work was demon­strat­ed in Cur­ro v Beyond Pro­duc­tions Pty Ltd where the Court said that Ms Cur­ro, a tele­vi­sion pre­sen­ter, was enti­tled to be giv­en ​“work of an appro­pri­ate qual­i­ty to keep her name and tal­ents before the pub­lic with rea­son­able fre­quen­cy” and that ​“the pro­duc­tion com­pa­ny had no con­trac­tu­al right to ster­ilise Miss Cur­ro’s ser­vices and keep her away from the view­ing pub­lic”.

Mann v Cap­i­tal Ter­ri­to­ry Health Com­mis­sion is anoth­er exam­ple con­cern­ing a sur­geon. The Court in this case held that the employ­ee ​“need­ed an ade­quate amount of work to main­tain his skills and his stand­ing among pro­fes­sion­al col­leagues”.

There­fore, it is appar­ent from the author­i­ties that unless the con­tract of employ­ment express­ly requires the pro­vi­sion of work, or the employ­ee is of a kind where such an oblig­a­tion will be implied, then employ­ers, may gen­er­al­ly speak­ing, direct their employ­ees to go on gar­den­ing leave even in the absence of a ded­i­cat­ed clause cov­er­ing gar­den­ing leave. It is self evi­dent that the inclu­sion of such a clause is use­ful to employ­ers and should avoid poten­tial argu­ments around the law­ful­ness of any such gar­den­ing leave direction.

Pro­tect­ing your busi­ness interests

The inclu­sion of an express ​“gar­den­ing leave” clause with­in an employ­ment con­tract along with an enforce­able post ter­mi­na­tion restraint of trade clause are use­ful ways in which employ­ers may seek to pro­tect the good­will in their busi­ness from poten­tial loss that may be caused by ex-employ­ees solic­it­ing work from their clients, or act­ing in com­pe­ti­tion (for a pre­scribed peri­od). Such pro­vi­sions also com­ple­ment pro­vi­sions pro­tect­ing the con­fi­den­tial­i­ty of their busi­ness information.