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SA Employment Contract - Not Able to Solicit Clients?

Discussion in 'Employment Law Forum' started by bsprud, 3 May 2016.

  1. bsprud

    bsprud Member

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    Any help and help would be appreciated greatly.

    Firstly, I am a Personal Trainer,

    I am about to terminate an employment contract with the gym I have been working for and move to a gym with the same company, but under a different franchisee. I have been told that I am not able to train any of my current clients at the new gym as it would a breach of contract, despite the fact that the member has access to any of the companies gyms and they would not need to cancel their membership.

    However, I thought that if the client is choosing from their own free will to continue training with me, that it would not be an issue.

    The wording on my contract is as follows:

    "You agree that during your contract and for 12 months following the
    termination of such contract for any reason, You, will not, directly or
    indirectly, for himself/herself, or for any other person or entity, hire,
    offer to hire, entice away, or in any other way persuade or attempt to
    persuade any employee, etc, etc, customer of the club to leave the club,
    or to terminate any business relationship with the club or to otherwise
    interfere with the business activities of the club."

    Where do I stand on this?

    The gym also has a $500 bond which they are not going to return until I have paid out my employment contract. I have heard that a lot of trainers have had issues with getting their bond returned at the end.
     
  2. Tim W

    Tim W Lawyer

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    You need to be clear if they were your clients or your employer's clients.
    You might have procured them, and you might be their trainer of choice,
    but they might have actually signed up with <whoever Fitness>, rather than with you.
     
  3. bsprud

    bsprud Member

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    Most of my clients, were originally and are still clients of my employer. That fact won't change regardless of whether they continue training under me at a new gym, as their contract is with that gym and not the new one. So I don't consider it as enticing them to terminate a business relationship, if they are within their rights to train at any gym of their choice.
     
  4. Tim W

    Tim W Lawyer

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    Well if they are not your customers, then you are pretty much limited to making known the mere fact of you changing jobs.
    If the clients choose to follow you, that's their own choice.
    There's quite a lot about this on here - you may find an archive search helpful
     
  5. bsprud

    bsprud Member

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    Thank you for the help
     
  6. Serge Gorval

    Serge Gorval Well-Known Member

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    It's a pretty standard non-solicitation clause.

    ^ The above in frankly redundant as it doesn't matter whether the client was yours or the gym's. The operative clause restricts you from actively taking the gym's clients with you.

    If you advise your clients that you're changing gyms and it happens that those clients choose to follow you to the new gym --> not solicitation

    Why do they have a bond and what do you mean "pay out your employment contract"?
     
  7. Tim W

    Tim W Lawyer

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    Yes. And that's why it's important to know whose clients they were.

    Look at it this way - if you are renting space/ facilities at X Gym, same as if you were paying to use a park for boot camp classes,
    and procuring the clients yourself, then they are your clients.
    On the other hand, if X Gym is procuring clients as their own, and in effect outsourcing the training work to you,
    then they are theirs.
    I suspect the latter is what is happening.

    As to "paying out your contract" - Like at lot of PTs and FTs, you are probably in sham contracting arrangement.
    You may find it helpful to do a keyword search through the archives on that term.

    I agree with @Serge Gorval - it is a standard clause.
    When I say "making known the mere fact...", and he says "...actively taking the gym's clients with you"
    we are actually referring to the same thing - just coming to it from different directions.
     

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