Gardening Leave | Resignation or Termination | Fair Work Act

Garden leave where employees are paid during their notice period but do not work. This approach is used to protect business secrets and interests by keeping employees away from their duties while they are still on the payroll.

Garden leave, often referred to as gardening leave, is a period during which an employee who is leaving a job (either by resignation or termination) remains employed and continues to receive their salary but is not required to attend the workplace or perform their duties. This leave typically occurs during the notice period.

Purpose of Garden Leave

The primary purpose of garden leave is to protect the employer's confidential information, client relationships, and other sensitive business interests. During this leave, the employee is usually restricted from working for competitors or starting a new job, thereby safeguarding the employer’s interests.

Implementation of Garden Leave

A garden leave clause should be explicitly stated in employment contracts. It outlines the terms under which an employee can be placed on garden leave, including restrictions, obligations, and duration.

Benefits of a Garden Leave Clause

  • Protection of Confidential Information: Prevents employees from sharing sensitive information with competitors.
  • Control of Business Resources: Allows employers to manage and restrict access to business information and systems.
  • Transition Period: Provides time for the employer to adjust to the employee's departure and manage the transfer of responsibilities.
  • Non-Compete Enforcement: Ensures a period during which the employee cannot join a competitor or engage in competing activities.
  • Maintaining Good Relations: Can result in a more amicable separation, avoiding financial complications or hostility.

Things Employees Need to Remember on Garden Leave

  • Contract Adherence: Employees must comply with the terms set out in the employment agreement.
  • Availability: They should remain contactable during the notice period.
  • Work Restrictions: They are prohibited from working for another employer during this period.
  • Salary Continuation: They continue to receive their regular pay.
  • Leave Entitlements: They may be eligible for holiday pay or sick leave, as per the contract.
  • Limitations on Duration: Garden leave cannot be indefinite or excessively prolonged.
  • Consent Requirement: Employees cannot be forcibly placed on garden leave without a pre-agreed contractual basis.

FAQs on Garden Leave in Australia

  1. Is Garden Leave Legal in Australia? Yes, garden leave is legal in Australia if it is included in the employment contract and adheres to employment law guidelines.
  2. Can I Force an Employee to Take Garden Leave? Employers can only enforce garden leave if it is specified in the employment contract. Imposing garden leave without contractual provision can lead to legal complications.
  3. When is Garden Leave Typically Used? It is often used when an employee in a sensitive or high-level position resigns or is terminated, to safeguard business interests during the transition.
  4. What Should I Remember When Placing an Employee on Garden Leave? Ensure the terms are clear in the employment contract, communicate openly with the employee, and adhere to the legal and ethical boundaries of garden leave provisions.


Garden leave serves as a strategic tool for employers to protect their business interests. It's essential to understand its implications, legal requirements, and benefits for a smooth transition process. Employers should seek legal advice or consult with employment relations experts like Employment Compass for specific guidance related to garden leave clauses.

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