VIC Unlawful Deed of Release - Grounds for Litigation?

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Troublefinder

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17 October 2018
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Hi LawAnswers.

My ex-employer wants me to sign a Deed of Release before they'll hand over certain documents that I need (duress?).

Part of this - and in fact, the main clause - states I must "cease all communications with <Victorian statutory body> and refrain and desist from making any complaint, statement, allegation or comment to any regulatory or statutory authority or representative of any such authority"... and goes on that I am required to destroy any "documentation" (ie, evidence) of their wrongdoings (as per the above bits about complaints, allegations, etc).

I believe this is unenforceable - however, does that make the entire deed unlawful (obviously, the other bits about not suing them, etc...)?

Also, for those going to answer, is there a link someone can provide to show the employer the unlawfulness of the above clause?

Secondly, this was drawn up by a law firm... given the specificity of the above, wouldn't it comprise a very unethical action on behalf of said firm?

And, it's been suggested that some of the signatures of the parties on the deed will be forged.. how then does that affect things? (I presume it completely nullifies it...).

Lastly, does any of the above give me grounds for litigation?

Many thanks!
 

Rod

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27 May 2014
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Going back a step before worrying the contents of a deed, what type of documents are they refusing to release to you?

There may be no need to sign a deed if they are already obliged to give your certain documents.

I'm concerned you may be signing away rights you should not be signing away.
 

Troublefinder

Active Member
17 October 2018
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Going back a step before worrying the contents of a deed, what type of documents are they refusing to release to you?

There may be no need to sign a deed if they are already obliged to give your certain documents.

I'm concerned you may be signing away rights you should not be signing away.

Hi Rod.

Fair question.

But, no. They're not legally required to hand them over. I've been going through dispute resolution, and this is the step we're at before it starts getting messy for me.
 

Rod

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OK.

The whole deed is not necessarily invalid if a clause or 2 are struck down.

Hard to know if the clause you quoted would be deemed invalid without knowing the context in which the deed is being prepared. The clause can be reasonable in certain circumstances, unreasonable in others.

The law firm preparing the deed is unlikely to be acting unethically. They must act within the law and properly represent the interests of their client. They do not owe you any duty of care.

Forging of signatures is illegal and the law firm can get into trouble if they knowingly assist this behaviour. The deed itself would likely be void and unenforceable if forgery could be proven. Not sure how you would prove the forgery without witnesses.

re: Litigation. Can't comment without the back story and knowing what rights have been compromised and damage you incurred.
 

Troublefinder

Active Member
17 October 2018
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OK.

The whole deed is not necessarily invalid if a clause or 2 are struck down.

Hard to know if the clause you quoted would be deemed invalid without knowing the context in which the deed is being prepared. The clause can be reasonable in certain circumstances, unreasonable in others.

The law firm preparing the deed is unlikely to be acting unethically. They must act within the law and properly represent the interests of their client. They do not owe you any duty of care.

Forging of signatures is illegal and the law firm can get into trouble if they knowingly assist this behaviour. The deed itself would likely be void and unenforceable if forgery could be proven. Not sure how you would prove the forgery without witnesses.

re: Litigation. Can't comment without the back story and knowing what rights have been compromised and damage you incurred.

Hi again Rod.

Yeah, I figured the first.

The second is not what I expected. I left the employ specifically because I became aware of 'wrongdoing' (I love that word :p) by the employer and other parties. I sent my complaints off, hence the clause being inserted about stopping talking to them, etc.

RE: forgery - simple, I ask the persons whose signatures they're supposed to have come from. Given the above clause, i'd like to think that some of the parties would not want to be a part of it, and to distance themselves as much as possible. A statutory declaration would be sufficient (again, trying to clear themselves from the aforementioned wrongdoing). But.. we'll see!
 

Rod

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Hi Grace,

re: clause preventing disclosure. There is a Whistleblowers Protection Act in Vic that may help you if the employer is a public body, but really need to see details before commenting further as I'm unclear about what protection, if any, you are after. Whistleblower laws in Australia are very weak :(

Are you considering any kind of claim against the company in addition to the documents you want? Something like constructive dismissal?

I am now part-time at Mulligan Lawyers if you need legal assistance. We can help with mediation as well if you feel intimidated by their lawyers.
 
Last edited:

Troublefinder

Active Member
17 October 2018
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0
31
Hi Grace,

re: clause preventing disclosure. There is a Whistleblowers Protection Act in Vic that may help you if the employer is a public body, but really need to see details before commenting further as I'm unclear about what protection, if any, you are after. Whistleblower laws in Australia are very weak :(

Are you considering any kind of claim against the company in addition to the documents you want? Something like constructive dismissal?

I am now part-time at Mulligan Lawyers if you need legal assistance. We can help with mediation as well if you feel intimidated by their lawyers.

Private school (and its partners). So, does get some government funding (thus I'm unsure whether it meets the criteria of "public body"). However, would clearly meet the requirements for "public interests". Definitely about teachers, and teaching, and breaches of privacy, etc.
 

Rod

Lawyer
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Can't say with certainty, but public funding of Private Schools may bring them under the the Whistleblower Act.

Being of 'public interest' does not help bring the school under the Act, just changes the way disclosures are handled.

Privacy is a different legal beast (kitten might be a better description), and there are exemptions for employers disclosing employee information.