Gardening Leave and Restraint Lawyers in Melbourne

A polite exit with a tactic behind it

You resign, or you are given notice, and the next morning your access pass stops working. You are told to stay home on full pay, hand over your files, and speak to no clients. That is gardening leave. It feels like paid holiday, but it is doing work for the employer. You are off the market, your client relationships go cold week by week, and the clock runs down while the employer gets itself into position for the restraint fight that may follow.

The weeks you spend on gardening leave are exactly when the important decisions get made: what you may sign with your next employer, when you can start, what the deed of release should say, and whether the restraint in your contract would actually survive a courtroom. If you are on gardening leave now, or expect to be by Friday, call 1800 130 120. The first call is free, and exits move quickly.

Still employed, still bound

Gardening leave is paid time away, but it is not freedom. Your employment continues and so do your duties of loyalty and fidelity, which means you cannot work for a competitor, solicit clients or quietly recruit your old team while it runs. Employers watch departing senior staff closely during this period, and one misstep hands them the injunction application they were hoping for.

The obligations run both ways, though. The employer needs a contractual right to sideline you at all, must keep paying salary, superannuation and benefits in full, and for roles where reputation and skills depend on actually working, courts have recognised a right to work that a forced benching can breach. When an employer gets this wrong, the restraint it most wants to enforce is often the first casualty.

Get the contract read before you make a move

Send us your contract and the exit correspondence. Within days you will know whether the gardening leave direction is even valid, what you can safely do before your end date, whether the restraint is enforceable at its written length or only some fraction of it, and what you should be negotiating into the deed. Executives who get this advice before resigning consistently exit on better terms than those who call us after signing.

Book a contract review

The restraint is usually softer than it reads

Post-employment restraints, whether non-competes, client non-solicits or staff non-poaching clauses, are void in Victoria unless they protect a legitimate business interest and go no further than reasonably necessary in duration, geography and scope. Victoria has no legislation letting courts trim an overreaching clause down to something fair, so a badly drafted restraint can fail entirely. Restraints are one of the corners of employment law in Victoria that the Fair Work system does not reach at all, which is why your contract, rather than a tribunal, decides this fight. The same wording gets fought over in commercial contracts between businesses, and the reasonableness question asked there is the one a court will ask about your clause too. Time already spent on gardening leave also counts: an employer who kept you benched for six months has already had six months of protection, and courts weigh that against any further restraint.

There is also a change coming. The federal government has announced a ban on non-compete clauses for workers earning under the high income threshold, slated for 2027, though as at August 2026 it has not been legislated. Today’s disputes are still decided under the current law, so an exit happening now needs the clause read by someone practising employment law as it stands rather than as it may look in 2027.

Before you resign, before you sign

The two most expensive moments in an exit are the resignation you send without advice and the deed you sign without a review. If a general protections or dismissal angle is hiding inside your exit, wrongful termination is where that starts. Anyone who sits on the board as well as the payroll has a second exit running at the same time, and that one belongs with director disputes, because resigning a directorship and resigning a job are not the same act and rarely have the same timing. Call 1800 130 120 or use the form on this page. The first call is free, and the point of it is to get you advice while you can still act on it, rather than after the fact.