And so how might an employment relationship make a difference on the AFL stage? There has been a lot of movement in the coaching fraternity of late, and even in the past 12 months we’ve seen contracts used to prevent moves.
Would the Swans have been better off if Stewart Dew wanted to leave his contract early as an employee to coach for Melbourne than they were having him on a contract? Legally, no, although they did use his contract to prevent that move.
But if the Swans had an identical clause prohibiting Dew from leaving early or working for a competitor, then the same legal principles apply, whether the clause appeared in either a contract or employment agreement. In other words, his move could have been prevented regardless of his arrangements if the contracts were drafted properly.
Not only in coaching, but also in a significant non-playing roles at a football club, Neil Balme simply had to serve a four week notice period with Geelong when he gave notice to join Collingwood. Clearly Geelong trusted Balme, and that trust would have existed whatever the legal relationship. And, if there is no trust or simply no dialogue, a contract or employment agreement must provide for an agreed exit strategy.
The dismissal of Brenton Sanderson by the Adelaide Crows this year, not long after extending his contract, would have had little practical difference regardless of the terms of his employment. If the contract lacked provisions for early termination, Sanderson might have been entitled to a significant pay out. This, though, would depend entirely on the specific terms of his contract.
Being an employee would not have provided any greater protection to Sanderson’s legal position. His pay is likely to have been above the unfair dismissal cap of $133,000. So yes, he would have some entitlement to accrued annual leave, and access to personal leave while employed, but that is most likely all he would have gained.
Where there is a choice, workers in many industries choose to be a contractor rather than an employee for a plethora of reasons, even if the employment relationship is a natural and more beneficial fit.
Brendan McCartney’s recent resignation from Western Bulldogs would most likely have played out in the same way on the AFL stage, whatever his precise legal status.
The underlying tensions of performance and team dynamics need thoughtful drafting, whether an AFL coach is a contractor or an employee.