VIC Non-Disparagement Clause in Employment Agreement

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Phil

Guest
If there is a Mutual Non Disparagement provision in the 'Agreement' between the employer & employee... Can the employer include this wording in an additional clause: "(except in respect of fraud, gross negligence, or breach of any obligations imposed under the Corporations Act 2001 (Cth))".

Background: Was off on Leave for major surgery for 8 weeks which the employer approved and the Medical Cert was provided. On the 1st day back, the employer made fabricated and constructed allegations against the employee. The latter refuted all allegations and proven to be untrue and fabricated. The employer then turned around to make claim of 'serious misconduct' for having obtained evidence to prove the employee's innocence to those false allegations as an alleged claim of breach of confidentiality.

The employer prevented the employee to defend himself/herself and offered either a termination by the employer without any pay of entitlements or that the employee resigns under an agreement to be entitled to those entitlements resulting in this issue above where a proposed non disparagement provision is meant to be in place and a mutual release. However, the employer still tries to find a way to potentially make false and fabricated allegations in the future as there is precedence of the employer having done so.
How does the Employee protect his/her position under employment law?
 

Rod

Lawyer
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27 May 2014
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What outcome does the employee want?
 

Paul Cott

Well-Known Member
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26 May 2014
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Phil,

The employer can add the clause in. I see nothing unlawful about the exception.

But if the employee doesn't like it, he or she doesn't have to agree to it. They could negotiate a differently worded clause or ask that it be deleted altogether.

Paul.