Usually it is easier to get a new job when you are already employed than when you aren’t. You won’t need to explain why you left your last job or why there has been a break in your employment. Christa Ludlow, Principal Consultant of Weir Consulting, advises what you should consider when job-hunting while you’re still employed.
It can be complicated to hide the fact that you are job-hunting while you’re still employed as you may feel that you are deceiving your employer by not telling them what your plans are. Generally, there is no legal obligation to tell your employer if you are looking for another job. There are however some legal and other factors you should consider and abide by if you want to do the right thing and retain all your entitlements.
1. Don’t use your current employer’s resources or time to job hunt.
While you are still working for your current employer, you must fulfil the implied and express terms of your employment contract. Using your employer’s resources (such as their intellectual property) or money (by skipping out of work to go to a job interview ) to help you get another job would usually breach those terms.
This also applies if you have a second job or a “side hustle”. It’s becoming increasingly common for people to have another job or business on the side, but if it conflicts with your existing job, that may entitle your employer to terminate your employment. Whether you have to disclose a second job will depend on the circumstances, any workplace policies and the terms of your employment contract, so make sure you are aware of these.
2. Does your boss know that you are open to opportunities?
Before making the leap, think about whether you have made it clear to your boss what you are looking for in your career. Have you investigated all the opportunities in your current employment? Perhaps your boss will know of opportunities coming up in the future. There is nothing wrong with looking for ways to advance your career, but you don’t want to be in the situation where you tell her you’re leaving and she says “If only I’d known what you wanted, I could have put your name forward for this role that’s coming up… “
If you trust your boss, have a discussion with her about your goals. If there is nothing she can offer you, she’s on notice that a good external offer may tempt you away. If she values you, she may put more effort into looking for something that will make you stay.
Be cautious about threatening to leave unless you get a promotion, however. While she may see you as a valuable employee, your boss may not react favourably to pressure from you for more money or status.
Also, your boss may not be able to give you a job reference while you are still employed, as that may conflict with her own duty to the employer.
3. Does your contract of employment contain a restraint clause?
It is important to check your employment contract, award or agreement in case it contains terms which last even after you resign. In particular:
- What period of notice are you required to give when you resign? You may need to continue working for a certain period after you give your notice. If you have a senior or important role, a longer period of notice may be required. The Fair Work Act 2009 contains minimum notice periods if none are specified in your contract, award or agreement.
- Are there any restrictions on where you can work after you resign? For example, some employment contracts will contain a term where the employee agrees not to accept a job from a client or competitor of their employer. This type of clause will be usually limited by time and/or geographical area. This is referred to as a “restraint of trade” clause.
- Are you restricted from using confidential information or intellectual property you have had access to during your employment? If your new employer expects you to bring this kind of asset with you, don’t automatically assume that will be problem-free.
If there are restraint clauses in your contract, you would be wise to obtain legal advice as they can be difficult to interpret and the consequences of breach can be severe.
4. Do you have a firm and satisfactory offer?
You may have been told by your prospective employer that you performed really well at the interview and that the job is yours. But is that a firm offer? Is the person who told you that authorised to make the offer? Do you know all the important terms and conditions attaching to your new employment and are you happy with them?
Don’t resign until you have a positive answer to those questions. You might assume that you can sort out the contract later, but unless you are desperate to leave, that could be a risky course of action.
Wait until you have an acceptable offer in writing and a firm start date. Until you have accepted the offer there is no enforceable contract between you and the new employer. When the time comes to resign, be courteous. In today’s digitally connected world, it is better that your past employers have no reason to criticise your conduct as you negotiate your exit.
Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified coach and mediator. She is a Principal Consultant with WEIR Consulting. WEIR provides workplace conflict resolution, investigation, coaching and training services to clients in the public and private sectors. Contact Christa at christa.ludlow@weirconsult.com.au. You can also find WEIR Consulting on Facebook 
and LinkedIn 
.
