NSW Termination Due to Poor Performance - Non-Compete Invalid under Employment Law?

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New Member
27 August 2015
Recent termination due to poor performance. During the time of perfromance management, it was found employee suffered a medical condition which contributed to his perfromance not being satisfactory.

Following granted paid sick leave and returning to work, the employee was faced with a 10-day turnaround performance plan. The first plan was not achieved and comment was made to superiors the length of plan was in his opinion too short a timeframe to complete or provide adequate responses. A written warning was issued.

A second 10-day plan was put in place and following completion of that 10-day plan and submission to superiors , it was considered to have not met the standard required and subsequently a Final written warning issue. A final 10-day plane was issued and subsequent meeting held where details of plan discussed, a final opinion was reached that it did not meet the minimum requirements and was subsequently advised at the meeting of his employment termination and granting 8 weeks notice.

Question: Given forced termination and subsequent longer than general notice period (employee is not in senior or executive capacity and was with the firm for 14 months), can it be argued successfully under Employment Law that restraint of trade or non-compete is invalid, given the employee did not met minimum standards reached at the company to hold down employment and thus should not be enforceable?

Tim W

LawConnect (LawTap) Verified
28 April 2014
First question - do you want the original job back?

Second question - why not just work, and leave it for anybody who has a problem with that
to it pick the fight?


9 February 2016
Sounds like they clearly were not satisfied overall with your performance. I mean, 'the employees" performance. Move on.


Well-Known Member
2 October 2015
It usually depends whether the restraint clause is deemed too broad to be held up. It would be up to them to prove that their restraint clause would hold up - and it may be cheaper letting you work at the other job rather than fight it. if they got a problem - you will know about it.