1. How badly do you want this job? Are you prepared to forgo the right to work in the industry for three months if you want to leave?
2. Are you getting paid enough money to agree not to work in the area if you choose to leave?
3. If you leave and want to work in Invercargill in the same industry, can you survive for 3 months without an income, or are you prepared to get a “fill-in “job for three months?
4. What does the Restraint of Trade say? Recent case law suggests that even if you are made redundant, a generally worded Restraint of Trade will still affect you. So, in other words, before you sign a Restraint of Trade, find out whether it is going to kick in not only if you chose to leave, but if you are made redundant from your position – otherwise you could be made redundant through no fault of your own and be prevented from going out and getting a job in the same industry.
It is simply too late to get advice once you have signed the agreement which contains a Restraint of Trade. Agreements provide that you have been given the opportunity to seek legal advice. If you get that opportunity but choose not to, you are going to have very little sympathy from the Court.
Another issue that arises is who you bring with you to a meeting as a support person. It is very important that, if you are facing dismissal (in particular), you bring someone with you.
That person doesn’t need to be a lawyer, but what the person should be able to do is ‘hold their own’ in what often can be a formal and adversarial situation.
It is no good going along to a meeting with you employer, (and your employer will probably have somebody with them) and taking someone who is not used to dealing with difficult situations. The support persons role is to do exactly that – support you. Ideally they need to have a good knowledge of what the meeting is about and be in a position to halt the meeting if things are not being run properly. You may think it is easier (and no doubt cheaper!) just to bring along someone such as a friend or a partner to a meeting. My advice to you is make sure that friend or partner knows something about employment law, otherwise they may end up more of a hindrance than a help.
Finally for employers. I talk ad nauseum about the need to have Employment Agreements. In a recent case an employer has been ordered to pay a penalty for not providing their employee with a written Employment Agreement. Everything in employment law starts with the Employment Agreement. For an employer, it is so much easier, once there is a dispute, if terms and conditions, pay rates, hours of work, house rules etc have been set out in an Employment Agreement. This is the first thing that a Court will look at once there is a dispute. Get Employment Agreements!
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
