Hello {{First name}},
Welcome to another issue of The Employers’ Briefing – short insights and guidance on employment law, WHS law and business disputes for Australian employers.
In this issue:
📌 Quick updates – A general protections claim dismissed after being filed 4 seconds late; employers prepare for the commencement of “Payday Super”; and a former employee ordered to pay $50,000 for using employer data to launch a competing business.
⚖️ The Long read – When “without prejudice” discussions may not be protected, and the risks this can create when exiting employees.
✏️ From my desk – A brief reflection on the first year of the firm.
Let’s get into it ⬇️
Quick Updates
4 seconds late – claim dismissed
Under the Fair Work Act 2009 (Cth), general protections dismissal applications must be lodged within 21 days after the dismissal takes effect. The Fair Work Commission may only extend that period in exceptional circumstances.
In So v Greek Orthodox Community of St George Brisbane [2026] FWC 390, the Commission refused an extension where the application was lodged just 4 seconds late. The Commission held that the shortness of the delay was not determinative: the statutory test still required exceptional circumstances capable of justifying the extension.
👉 Why it matters: statutory time limits in employment matters are applied strictly. Employers should therefore consider carefully whether jurisdictional or limitation objections are available before responding to the substantive merits of a claim.
“Payday Super” starts on 1 July 2026
From 1 July 2026, employers will be required to pay superannuation contributions at the same time as wages. Under the new “Payday Super” regime, contributions must be received by the employee’s super fund within 7 business days of payday.
The reforms represent a significant shift from the current quarterly compliance model. The ATO has urged employers to prepare now by reviewing payroll systems, considering cash flow impacts, and planning for the closure of the Small Business Superannuation Clearing House on 1 July 2026.
👉 For employers: superannuation compliance will move much closer to a real-time obligation. Businesses should review payroll and finance systems well before July 2026, as delayed contributions may expose employers to penalties and superannuation guarantee charge liabilities.
Employee ordered to pay $50,000 for using employer data to launch competing business
Under Australian law, employees owe duties of confidentiality during employment and, in some circumstances, fiduciary obligations. Misuse of confidential information or employer assets may expose employees to injunctions and compensation claims.
In Direct Flow v Petersen [2026] NSWSC 171, the NSW Supreme Court ordered a former manager to pay $50,000 after finding that he had used his employer’s information and materials to establish a competing business while still employed. The Court found that he had downloaded a substantial client list, registered the employer’s trading name in his own name, and used marketing materials developed during the employment as a springboard for the new business.
👉 Takeaway: confidential information and business assets may remain protected even where contracts are silent or work is performed outside the office. The decision is also a reminder of the importance of clear confidentiality, intellectual property and post-employment restraint provisions in employment contracts.
The Long Read
The mistake most employers make when exiting employees: “without prejudice” discussions
Introduction
A typical scenario:
An employer is minded to terminate an employee’s employment due to poor performance.
Before engaging in a performance improvement process, the employer has a discussion with the employee offering them an extra payment in exchange for an agreed departure (usually documented by way of a Deed of Release).
The offer is put in strong terms, and if it is not accepted, termination quickly follows.
The risk is that if the employee does not agree and the employment is terminated, evidence of the conversation can be used by the employee in an unfair dismissal claim to show that the performance improvement process was not genuine, as the employer had already made up its mind.
To address this risk, many employers label these conversations and surrounding correspondence as “without prejudice”, believing that this label somehow shields those discussions from being admissible as evidence.
This is, very often, a mistaken belief – and it can lead employers to say things they otherwise would not, only for those communications to later be used against them in legal proceedings.
What “without prejudice” actually protects
Generally speaking, evidence of communications between parties who are in a dispute, and which are made in a genuine attempt to settle that dispute, cannot be admitted later (for example, in court proceedings) if the settlement talks fail. These communications are commonly labelled “without prejudice”.
The rationale is public policy: encouraging parties to speak frankly to settle disputes without fear that any concessions will later be used against them.
The label is not determinative however: for the protection against admissibility to apply, there must be a dispute; and the communications have to be a genuine attempt to settle that dispute.
The dispute should usually be an existing (or clearly emerging) disagreement about legal rights/obligations, of a kind that could found proceedings for relief. Without this element, the “without prejudice” label will likely be decorative.
So, for example, poor performance, a culture mismatch, a role that has been flagged for redundancy, or a manager who has simply lost confidence in someone are unlikely to be, on their own, qualifying disputes.
Doing it well: option, not ultimatum – and genuine process
With that in mind – that is, knowing that many conversations will simply not be able to be covered by the “without prejudice” rule against admissibility – how to handle an exit discussion properly when there is a desire to offer an employee a “faster alternative”?
In essence: employers should present the agreed-exit pathway as one of the options for their consideration (rather than pressing the offer on them); and make it clear that should the employee not accept, the employer will genuinely proceed with the relevant process – be it a redundancy or a performance management one.
This helps to prevent the employee from credibly adducing evidence of the offer as evidence that the employer had made up its mind on termination prior to following the relevant process.
This depends, of course, on the offer being a genuine alternative – meaning that the termination decision has not already been made, and the process that follows is conducted in good faith.
When the decision is already made
If the employer has genuinely concluded that the employee needs to leave – for example, at the conclusion of the performance improvement process – a more defensible course is to be upfront with the employee and negotiate an agreed exit on that basis.
That decision should still come at the end of a proper process. Telling an employee point-blank that their employment will end shortly and they just have the opportunity to negotiate what the exit looks like carries obvious risks.
Bottom line
Regardless of when the conversation is had, the safe approach is to treat correspondence and communications relating to negotiated exits as discoverable and admissible – whether or not the “without prejudice” label is used (unless, of course, the requirements for the protection against admissibility apply).
This helps to structure exit discussions properly, and to avoid making mistaken assumptions that can lead to costly adverse findings.
From my desk
At the end of March, AM Law & Partners celebrated its first birthday. It has been a busy and rewarding period, with a steady stream of employment, WHS and commercial matters across a range of industries.
One thing that has become increasingly clear to us over the past year is how difficult workplace compliance has become for employers; not necessarily because businesses are unwilling to comply, but because the legal and procedural landscape is becoming more complex and fast-moving.
That is one of the reasons we started The Employers’ Briefing: to provide commercially-focused guidance on issues that employers are dealing with in practice.
Thank you to everyone who has supported the firm during its first year.
Thanks for taking the time to read this edition of The Employers’ Briefing.
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Until next time,
This publication is for general information only and is not legal advice. It should not be relied on as such. Obtain legal advice specific to your circumstances before acting on its content.