VIC Employment Law - Restraint of Trade Enforceable?

[vikas1429]

I am being offered a role by a job consultant at my current client location and want to join them. For this, I need to resign from my current company, however, there is non-solicitation clause in my offer letter with the current employer (see below).

'Non-Competition & Non-Solicitation: You agree that during the Restraint Period and within the Restraint Area, after the termination of the Secondment, you shall not, without the written consent of ABC Australia, accept any offer of employment or engagement from any of ABC Australia’s customers or the customer’s end-user customer (in the case of a consulting or placement organization) with which you may have come in contact during the Secondment.'

Under Employment Law, does this restraint of trade restrict me from joining the job consultant as they are not competitors as such?

Please guide on this.

 

[Victoria S]

Hi,

Whether or not your situation would be caught by this clause depends on who has made the offer of employment or engagement to you, and whether that company or business may be classified as one of ABC Australia's customers or the customer's end user customer.

I'm not sure what they mean by that last part about end user customer, however, I suspect it may refer to job consultants such as the one offering you the job. It doesn't preclude you from taking the job, you just need to get your ex-employer's permission first.

 

[vikas1429]

Thanks Victoria,

My ex employer might not give permission for this. However, I am a software developer with no access to proprietary information of my ex employer. Will it still be enforceable.

 

[Rod]

Access to proprietary information would only be part of the employer's concern. They also do not want to lose profit the customer generates for them and this is not an unreasonable position to take. Will the job consultant offer you alternative employment if the employer says 'no'?

Remember the job consultant is after you for his gain, not yours.

 

[vikas1429]

Thanks Rod,

The consultant has recruited me for this opportunity specifically in consultation with end customer. What are the chances that my ex-employer will pursue me as revenue loss would not be much?