LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

NSW Contract Law - How to Exit Personal Trainer Contract?

Discussion in 'Employment Law Forum' started by Shae Henderson, 21 July 2016.

Tags:
  1. Shae Henderson

    Joined:
    21 July 2016
    Messages:
    1
    Likes Received:
    0
    I am a personal trainer contracted with a gym as an independent business owner. One of the stipulations of that contract was in the first few months I had to work X hours per week in exchange for not having to pay them the full rent. They wrote on the contract I only had to do 10 hours per week but told me when I started that I had to do 15 hours and it was a typo and I had no choice yet they did not change the contract.

    Now I have 3 months left on my contract and want to leave. I believe that due the above information that they have breached the contract and I should be able to leave without paying out the remainder of my contract.

    They say that it doesn't matter and I have to pay it in full.

    Is there a way I can use this to get out of the contract under contract law?
     
  2. Rod

    Rod Well-Known Member

    Joined:
    27 May 2014
    Messages:
    2,170
    Likes Received:
    257
    Possibly. You may be able to claim duress.

    Personal circumstances at the time of starting will determine whether or not you can make a case for duress. You can say to them release me or I will take you to court for rescission of the contract and damages (extra hours you worked).

    Not sure what remedies you'd have if you were deemed an employee (possible payment for extra hours?)
     
  3. Serge Gorval

    Serge Gorval Well-Known Member

    Joined:
    2 November 2015
    Messages:
    167
    Likes Received:
    10
    No, can't claim duress.

    Parole evidence rule ( can't bring evidence contrary to written term) 10 hours should stay and they can't enforce you to do 15 hours.

    If they try, then you can claim repudiation and break the contract.

    If you are a genuine IC then you have a right to terminate the agreement under the termination clause of the contract or apply to the IRC under the Contract Review Act 1980 (NSW).

    Things to consider however :

    The fairness of a term must be considered in the context of the contract as a whole.
    • Does the term cause a significant imbalance between your rights and obligations and those of the business?
    • Is the term reasonably necessary to protect the legitimate interests of the business?
    • Would the term cause you detriment (financial or non-financial) if the business tried to enforce it?
    • How transparent is the term?
     
  4. Sophea

    Sophea Well-Known Member

    Joined:
    16 April 2014
    Messages:
    2,300
    Likes Received:
    334
    Hi Shae,

    Did they verbally alter the agreement so that you had to work 15 as opposed to 10 hours a week after you had signed the contract? If so, and you agreed to the change to the terms of the contract, you have essentially consented to the alteration of the contract, and waived your rights to enforce the contract in its original terms. No. I don't think it constitutes a breach that would enable you to get out of it sooner.
     
  5. Rod

    Rod Well-Known Member

    Joined:
    27 May 2014
    Messages:
    2,170
    Likes Received:
    257
    Unless I'm misreading the OP post, duress is possible as the 'duress' occurred after the written contract was prepared and signed. The parole evidence rule is not applicable in this situation.
     
  6. Serge Gorval

    Serge Gorval Well-Known Member

    Joined:
    2 November 2015
    Messages:
    167
    Likes Received:
    10
    How on earth is duress applicable here? A contract was signed and there's a dispute over a material term.

    Do not understand your comment about parole evidence not being applicable. Preference is given to the written contract. For the Gym to rely on a verbal variation when it hasn't been put in writing is ostensibly a very weak argument.
     
  7. Rod

    Rod Well-Known Member

    Joined:
    27 May 2014
    Messages:
    2,170
    Likes Received:
    257
    OP was either forced into or agreed to working 15 hours per week instead of 10 that is written in the contract with no change in remuneration. This event has taken place after the contract was signed and has operated for the contract term less 3 months.

    It is seemingly not in dispute that the OP worked 15 hrs/week instead of the 10 hrs /week. Parole evidence rule will not exclude the fact that extra hours each week have been worked over and above what is the contract. Question to be determined is whether the change in hours was forced or agreed to.

    Edit: Not sure there is a dispute over the material term when the contract is clear on 10 hrs/week. The Gym is attempting to change a written contract post-signing.
     

Share This Page

Loading...