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NSW Commercial Litigation - Employer vs Employee?

Discussion in 'Commercial Law Forum' started by El-P, 7 July 2015.

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  1. El-P

    El-P Member

    7 July 2015
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    My ex employer is threatening commercial litigation against me for breach of contract. They did not pay me my final pay and entitlements when I resigned - giving them a full 4 weeks notice that I served out - with a very thorough handover including notes that I have copies of. I left for workplace stress as I was being severely bullied by one of the managers. Once I was advised that they were taking legal action against me for breach of contract I filed for a workcover claim.

    Letter 1 - their representation
    1. committed a significant breach of her contract of employment in deleting the email on her employer provided email account prior to the last day of her employment.

    Clause 16 of the Employment Contract sets out your client obligations. Relevantly we
    point out the following:

    The employee is strictly prohibited from:
    (a) Storing or transmitting harassing discriminatory, offensive, hostile suggestive, defamatory, or otherwise inappropriate language (whether express or implied) on the employer's computer network.
    (b) Deleting or otherwise making inaccessible through technology or other device any information stored on the computer network, including but not limited to email, downloaded files, history and web caches as well as any other articles prescribed in the Employers policies governing the computer network.

    Our client is in the process of calculating the damage and loss caused by your client's
    actions including attempts to recover the data and intends to pursue XXX to the full
    extent possible to recover all damages and loss.

    Second Letter - My lawyer (who is handling my work cover case and is not a commercial lawyer and has not provided me any advice hence why I am on here.)
    We refer to your letter of 19 May 2015 regarding this matter as well as our subsequent telephone discussions.

    We note your client is alleging our client breached her employment contract and are seeking to withhold payment of wages for the last weeks work to offset any losses your client may have sustained from this alleged breach until the full loss is quantified. We confirm our client disputes breaching her contract and reiterate that she was simply seeking to do the right thing by deleting unnecessary emails which were no longer relevant to her work. Before ceasing work our client provided a detailed handover to those taking over her work including a summary of all outstanding work and items to be actioned. There was no malicious intent
    behind our client deleting her emails and we cannot see how your client can press any claim when they have suffered no loss.

    In order to resolve this matter expediently on commercial terms our client had instructed us to offer that your client cease pursuing this matter further in exchange for our client foregoing any claim to her outstanding wages which your client has not yet paid. This offer was made over 4 weeks ago. To date we have not yet received your response to the offer.
    Our client is not able to leave the offer open indefinitely. As such, we have been instructed to advise that our client is only prepared to leave the offer open for acceptance until 5pm Wednesday 24 June 2015. If the offer is not accepted by that time it will be revoked. In the event that the offer is not accepted then our client will be pressing for payment of all outstanding wages and other entitlements relating to her employment with your client.

    Second Letter - My lawyer

    We refer to our letter of 19 May 2015 regarding this matter in which we provided an offer which was to remain open for acceptance until 24 June 2015. Given the offer has not yet been accepted we have been instructed to withdraw that offer.

    We note your client has sought to withhold wage payments and other entitlements owed to our client regarding her employment with them. Given our client is no longer employed by
    them we believe there is no basis for them to withhold the payments. As such our client
    makes a demand for outstanding wages and other entitlements owed to her as follows:
    29th April – 5th May 2015 – period worked 40 hours = $1264.52 + Super
    6th May 2015 – 7th May 2015 - worked 16 hours = $505.81 + Super
    8th May – 14th May – Annual Leave (hours available 37.86257143) = $1196.95 + Super
    Total unpaid work and leave entitlements = $2967.28 + Super

    If the above amounts owed to our client are not paid within 7 days a complaint will be made
    with Fair Work Australia and our client will also seek to commence proceedings to recover
    the outstanding amounts owed. In the event that proceedings are commenced our client
    will seek to rely upon this letter as to the issue of legal costs and will seek costs on an
    indemnity basis.(this has now been reported to the Ombudsman).

    Third letter - their representation
    We refer to your letter dated 26 June 2015. With due regard to the irreparable damage XXXXX caused our client prior to her last day of employment, it is perplexing that she would now press for the payment of her wages and entitlements during that period.

    As foreshadowed in our previous correspondence our client has undertaken the substantial task of reviewing all correspondence initiated by XXXX. It is reasonable to say that the outcome would cause any reader concern not only as to the content of that correspondence but the obvious intent by XXXX to cause damage to our clients business and reputation.

    A particular example is the loss of the account for XXXX. Both email trails with the client and XXXX skype history clearly shows that XXX was aware that client were considering whether they going to continue to use the company services. Not only did XXXX fail to bring the issues with the client account to the attention of anyone at company but she appeared to have taken some satisfaction from the loss of the account. This loss to company amounts to a contract in the sum of about $20,000.

    There have been a number of other projects impacted by XXX deletion of emails including the need to re-do creatives, internal project governance and information architecture reports and the lost content. Those impacted projects include but are not limited to the following:

    client A
    client B
    client C
    client D
    client E
    client F
    client G

    Our client amounts its losses in failure to complete contracts at this stage is quantified up
    to the sum of $40,000.

    Marketing and Events
    It has also come to our client's attention that XXXX signed a contract with conference organiser for marketing and events without authority. Having now deleted all email trails and documentation in relation to that contract, our client has had to undergo over (20) hours of renegotiation in order to put the project back on track. So far to date the losses incurred by our client in the relation to conference organiser and actions of XXX is quantified up to the sum of $11,000.

    Internal Disruption for Directors
    The directors of company have accounted the use of a time sheet to calculate the time spent by them to attempt to recover the damage caused by the deletion of emails by XXXX. To date the total amount is quantified up to the sum of $21,000.

    Total Damages
    We estimate our client's total damages to date caused by XXX deletion and breach of her employment contract to be in excess of $70,000. This amount may continue to increase as new damages are uncovered.

    Our client is prepared to litigate if necessary to recover their losses.

    The cost of litigating including obtaining forensic accounting reports and legal costs are likely to exceed $80,000. They will seek to also recover these costs from you.

    Offer of settlement
    Purely on a commercial basis we are instructed by our client to issue an offer of settlement
    on the following terms:

    1. XXX is to pay company the sum of $50,000 on account of their losses and in full and final satisfaction of all claims. ("settlement sum")
    2. XXX waives her right to any unpaid wages and entitlements.
    3. The settlement sum is paid within (28) days of the parties entering into a deed of release.

    If this offer is not accepted, our client proposes to pay XXX her outstanding wages and the entitlements she seeks to be paid and commence proceedings without further notice.

    I am yet to respond.

    First I do not agree to their claims as I was NOT aware or nor did I take satisfaction in a client leaving - it had nothing to do with me and I gained no commercial satisfaction or financial satisfaction from this.

    The clients they are disputing I interrupted were not all mine and also the ones that were had a complete handover - this was documented and is a document that I obtain a copy of now.

    Directors costs - this to me is a crock?

    Signing off on a contract without approval. This is crap as I actually had verbal approval from two of the three directors and was done in October 2014 and never raised as an issue until these legal proceedings.

    I understand that I breached my contract by deleting some of my emails - however I had been deleting unused emails the whole time I was employed (7 months). This was never made note of, was not stressed or inducted.

    The emails are on Google cloud so cannot be retrieved (I didn't know this) - however as an IT company they had an option of buying a Google Vault which would have protected them - aren't they negligent?

    Basically I want to know if I am going to get screwed? I need a new solicitor as I have had no advice and do not know where I stand! I am scared. I have nothing to my name, my husband is the asset holder - I basically have a wardrobe of clothes, shoes and the wage I get each week.

    Can anyone help?
  2. Ivy

    Ivy Well-Known Member

    10 February 2015
    Likes Received:
    Hi there,

    This matter is far too complex for this forum to provide any substantive help to you. You need to seek legal advice as soon as possible to determine whether or not you should accept their offer or proceed to a court hearing.

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