Termination of employment issues; gardening leave

It is not uncommon for an employee to be placed on “gardening” (or in England it is termed “garden” leave) at the time the employee is provided with notice of termination of employment. This “leave” arises typically when the employer may not want the employee to attend the workplace. There may be various motives for this including a fear by the employer that a disgruntled employee’s presence at work may damage workplace morale or becaise of a fear that the employee’s presence may foster disharmony and even enable the employee to damage the employer’s commercially valuable trade secrets and relations with customers and clients.

Statutory industrial instruments such as awards do not normally forbid the practrice but what are the common law implications?

In the absence of a contract of employment expressly obliging an employer to provide work there is no common law obligation upon an employer to provide work if it is reasonably available (Collier v Sunday Referee Publishing Co (1940) 2 KB 647). Consequently the placement of a departing employee upon gardening leave is ordinarily permitted however any period of gardening leave must be added to the length of any post employment restraint when determing whether the restraint is reasonably necessary to protert the employers’ interests and in the public interest and thus valid; Tullett Prebon (Australia) Pty Ltd (2008) NSWSC 852; and see  Macken’s Law of Employment 8th ed at 383