Hi, I have a question about clawback provisions in an employment contract.
Within the "Remuneration" clause, the following is contained:
"In addition to the above, your total remuneration package will also comprise the following to be paid for by the company on your behalf:
An annual salary review will be undertaken with the Company and we will apply our policy based on performance and other matters we consider relevant."
So it is quite clear course fees are part of the remuneration and there is no specific Clawback clause, nor is there a specific clause for Study Support, but there is a clause on Study Leave, and contained within that clause is the following wording:
"If you resign or are terminated from your employment with the Company or discontinue study of an external qualification, the company may seek reimbursement for any study leave or study support provided during the 12 month period prior to you leaving the Company or discontinuing study."
I understand the concept, the person is moving on so theoretically the company won't get the value or return on investment from paying the course fees. But the person has proved to be a valuable employee, which has been recognised by both the company and clients, and in doing so they have often worked what would be deemed unreasonable additional hours, in excess of the standard 38 hrs. So the $9k clawback is a real kick in the face.
Additionally, the person was advised that the fees were part of their remuneration and never advised of any clawback provisions until receiving an invoice for the fees after giving notice.
The person will try to negotiate with the employer over the clawback amount but my question is:
Is it ok for there to be no specific Clawback clause, nor a specific clause for Study Support but for the clawback provision to be what I consider "hidden" in the Study Leave clause?
Within the "Remuneration" clause, the following is contained:
"In addition to the above, your total remuneration package will also comprise the following to be paid for by the company on your behalf:
- Course fees for you to complete the Institute of Chartered Accountants Program (Study Support); and
- Annual Membership fee to the Institute of Chartered Accountants
An annual salary review will be undertaken with the Company and we will apply our policy based on performance and other matters we consider relevant."
So it is quite clear course fees are part of the remuneration and there is no specific Clawback clause, nor is there a specific clause for Study Support, but there is a clause on Study Leave, and contained within that clause is the following wording:
"If you resign or are terminated from your employment with the Company or discontinue study of an external qualification, the company may seek reimbursement for any study leave or study support provided during the 12 month period prior to you leaving the Company or discontinuing study."
I understand the concept, the person is moving on so theoretically the company won't get the value or return on investment from paying the course fees. But the person has proved to be a valuable employee, which has been recognised by both the company and clients, and in doing so they have often worked what would be deemed unreasonable additional hours, in excess of the standard 38 hrs. So the $9k clawback is a real kick in the face.
Additionally, the person was advised that the fees were part of their remuneration and never advised of any clawback provisions until receiving an invoice for the fees after giving notice.
The person will try to negotiate with the employer over the clawback amount but my question is:
Is it ok for there to be no specific Clawback clause, nor a specific clause for Study Support but for the clawback provision to be what I consider "hidden" in the Study Leave clause?