Can they stop you from earning

Discussion in 'Employment Law Forum' started by Jemma, 9 January 2018.

  1. Jemma

    Jemma Well-Known Member

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    I recently left a position where I was an assistant but Main fee earner. They now want to enforce my restraint area under my contract. I live within 2km of my old office but work from home. How can they enforce such contract when they did not pay my super for 2 years and have breached the same contract they wish to enforce?
     
  2. DMQC

    DMQC Well-Known Member

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    I am not sure what relevance being the 'main fee earner' has on the question, so I will skip over that part for now, but let me know if you had a question about it that I may have missed.

    What was the restraint area of the contract? Are you engaged in conduct which was prohibited by the restraint of trade clause? What was the period of the clause? Restraint of trade clauses between employers/employees are notoriously tricky, particularly from the POV of the employer, they need to ensure they do not 'overcompensate' by restricting too much for too long in too broad of an area.

    The Superannuation issue wouldn't have much bearing on this issue, all breaches entitle the innocent party to damages, but not all breaches entitle the innocent party to terminate the contract. In any event, even if you were entitled to terminate the contract for not paying superannuation you must 1. elect to the termination because of the breach and 2. If you proceed as though you won't terminate, then you cannot later terminate (so if you knew about it and didn't do anything, then you lost your chance to terminate).
     
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  3. Jemma

    Jemma Well-Known Member

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  4. Jemma

    Jemma Well-Known Member

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    Thank you. I had contact with all suppliers and referral sources which with the restraint of trade enforced means that I am not able to entice but if they choose to contact me I should be ok?

    The restraint clause is 10 kms 12 months
    5 kms 6 months etc
    However I live within this restraint
     
  5. Rob Legat - SBPL

    LawTap Verified Lawyer

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    You'll need to determine the exact nature of the restraint. Courts will read them down very strictly because, as you've raised, they can't stop you earning a living. The restraint is more for the protection of their interest in their customer base.

    There is recent precedent where it is much harder to enforce a restraint clause where the employer is in breach of the employment agreement, but you will likely have to prove that first.
     
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  6. Jemma

    Jemma Well-Known Member

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    Thank you so much
     
  7. Clancy

    Clancy Well-Known Member

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    This is interesting.... so any time you had a right to terminate a contract but did not know you had that rite until later on when say, advised by a lawyer, then sorry, you 'cannot later terminate'?
     
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