Is a former employee disparaging your business?

Is a former employee disparaging your business?

Non-disparagement clauses are common features of settlement agreements and deeds of release in employment disputes. They are intended to prevent the parties from disparaging or denigrating each other. Employment disputes are often acrimonious, so non-disparagement clauses can be very important in resolving the dispute. After all, nobody wants to settle a dispute only to then have the other party continue to denigrate them afterwards.

Clients often ask us whether such clauses are actually enforceable. The answer (from the recent case of Network Ten Pty Limited v van Onselen [2023] NSWSC 829) is yes. In that case the former employee, journalist Dr Peter van Onselen made comments in an article which he wrote about his former employer (Network Ten) after his employment had ended. The court held that aspects of the article were disparaging towards Network Ten and by extension, that he was in breach of the non-disparagement clause in the deed of release the parties had entered into upon the termination of his employment.

Of course, whether comments by a former employee may be reasonably regarded as disparaging will depend upon the context of those comments. A well-drafted non-disparagement clause should go no further than to protect your legitimate business interests and by extension, give it the best prospects of being enforceable against a former employee.

If you need some advice about your situation or putting a settlement deed in place with an effective non-disparagement clause, then now may be the time to get in touch. We recommend that in the first instance you discuss your situation with us in our SmartMove initial 30-minute discounted consultation (in person or by telephone), which we offer for just $80 and which can be booked through our website or by simply getting in touch. Austral Legal. Practical advice