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ACT Leaving Employer and Serving Out Notice Period - Threatened with Injunction

Discussion in 'Employment Law Forum' started by unknown_target, 9 May 2015.

  1. unknown_target

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    Evening All,
    I gave notice (mandatory 4 week notice period) to my current employer a few days ago. I have been called up by the boss and threatened with legal action so I cannot work in my field quote "You will be getting an injunction so you cannot work with your skills with any employer that offers any service that is similar to ours".

    I currently do abc tasks with my current employer and have signed a contract with my new employer to do xyz tasks (starting after I for fill my current contract).

    I'm in a technical field, that doesn't interact with clients or sales for that matter. I have a non-competition agreement in my current contract that restricts customer interaction, involving with current clients and seeking employment with clients. New employment is not a client nor in the same field as current employer, but in IT (a massive field)

    All the people I have spoken to said this is ludicrous and I think so as well. All the information I have read and been advised on states there is no legal employment law grounds for them to prevent me from working.

    FYI I'm married and sole income earner for a family of five.

    Anyone's input would be greatly appreciated.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Unknown Target,

    Basically, the court looks unfavourably to restrictive covenants (e.g. non-compete) because it takes away a person's livelihood and prevents them from making a living. If you did not sign a non-compete clause that covered employment with a competitor then the employer cannot restrict you in this scope. The employer is limited in what is restricted in your employment contract. Since you did not sign (and therefore agree to) any restrictive covenant in this scope, they cannot later force it upon you. Further, even if it was included in your employment contract, the clause may still be invalid. Again, court's tend to be suspicious of restrictive covenants on employees, so unless you are a senior person (e.g. executive) or someone dealing in highly technical know-how in a niche market, and unless the restrictive covenant is for a reasonable time (e.g. 3 months) and limited in scope and clearly defined, it will unlikely be enforceable. If the restrictive covenant entitles you to wages from the employer during the restricted period (so in effect you are still "working" for the employer but restricted from doing any actual work: see Garden Leave) then the courts may be more willing to enforce it.

    It appears your friends are correct and your employer will have a hard time arguing for an injunction.
     
    unknown_target likes this.
  3. unknown_target

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    Thanks for the reply, it was very informative and what I thought.
     
  4. unknown_target

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    More information that has come to hand. If i'm threatened with legal action regarding the non-compete, is he legally allowed to contact my new employer relating this issue ?

    If he is not legally allowed to do this, what repercussions will take affect ?
     
  5. Sarah J

    Sarah J Well-Known Member

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    Hi,

    I cannot think of anything that would prevent your former employer from contacting your new employer. There may be a vague defamation cause of action, but this is unlikely if the information does not adversely affect your reputation and the statement is not false or misleading.

    Have you tried taking a proactive approach and telling your new employer first? This way, you can explain your side of the story, how there is no restrictive covenant preventing you from taking new employment in this industry (and even if there was, you doubt it would be valid and enforceable). Best to get your side out there before your former employer tells their side of the story.
     
    Rod likes this.
  6. Tim W

    Tim W Lawyer

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    He would have to know who your new employer was first.
    If he does know, and if he contacts them, and if he causes you harm (eg damage to reputation or financial loss)
    by doing so, then you may have an action in defamation.
     
    Rod likes this.
  7. unknown_target

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    Thanks for the comments, great information. After I handed my resignation in i said quote "I will be working as normal and accommodate anything that needs to happen in my transition, I'm not leaving due to any disagreement, just that I personally need to move in a new direction", I was called within the hour and told " I will be pushing hard so you cannot work" even though in my contract I'm free and clean.

    Also he has done this to every employee that has left, and never before now has one foul word been used against me I was and still am a great employee, he has gone of the deep end I think.
     
  8. Sarah J

    Sarah J Well-Known Member

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    Your welcome. I hope this turns out in your favour. Your employer sounds like he is just threatening you and trying to intimidate you into thinking twice about leaving. If he has done this to every employee in the past, perhaps you could contact some of them to enquire as to the outcome. It sounds like he is just being paranoid.
     
  9. Rod

    Rod Well-Known Member

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    Some employers seem to forget slavery is illegal here :(

    Good luck.
     

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