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NSW nonsolicitation employment clause

Discussion in 'Employment Law Forum' started by Jayz, 21 April 2017.

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  1. Jayz

    Jayz Member

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    Hi,

    I am hired as a contractor by Company A, and I am sent to Company B to work.
    Company B is paying Company A for skilled worker such as myself.

    I have applied for a direct position in Company B. And Company B is keen to hire me. However there is this clause in my current employment contract.

    "Contractor will not directly or indirectly, on the Contractor's own behalf or in the service or on the behalf of others, in any capacity solicit the business of any customer, client or consultant of the Employer."

    Can this be used against me?

    Thanks,
    Jayz
     
  2. Lance

    Lance Well-Known Member

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    Hi Jayz,
    I have seen this occur in the past and while I believe it can be used most company A's don't want to jeopardise their contract with company B so they overlook the odd poached employee.
     
  3. Jayz

    Jayz Member

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    Thanks for the reply.
    I have applied for the position at Company B via an ad, which was posted long ago. This ad was not specifically catered for me. There is no poaching involved as I applied for it on my own volition.

    Company B has received my application and informed me that I need to explicitly tell my current employer that I have applied for this position on my own. shortly after my call to my current employer, he wrote me an email saying that my contract has a clause saying it prevents me from talking or applying to Company B about employment.

    That is when I feel that the clause is vaguely written, and I need advise. In the email, he even stated the amount for compensation, which, the contract does not state.
     
  4. Rod

    Rod Well-Known Member

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    Without having a lawyer look at the detail it is hard to know. Restraint clauses are hard for employers to enforce but it doesn't mean all restraint clauses are not effective as it depends on the facts of the situation.

    The odds are in your favour that the restraint clause is not effective but your individual circumstances are what changes the odds one way or the other. Without detail and reading of emails and agreements it is difficult to make a call on this issue.

    The employer is understandably upset as his email indicates but that doesn't change the legal position.
     
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  5. Blessing

    Blessing Well-Known Member

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    Restraint clauses are very difficult to deal with and will depend largely on a number of factors, and not just that particular section, it needs to be looked at in context of the entire clause.

    A restraint clause will usually be ineffective if you can prove it affects your ability to sustain yourself or it prevents competition. As said above its difficult to assess whether its effective or not without all details of the agreement. It is best to speak to a lawyer about the matter.
     
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  6. Jayz

    Jayz Member

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    Thanks for all the replies.
    I'm prepared to seek legal advise. I have tried to call a couple of solicitors but have not gotten any feedback for appointments.

    Any advise for employment law solicitors that i can contact? I'm in Sydney
     
  7. Blessing

    Blessing Well-Known Member

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    depending on your budget, small firm in Rockdale called Lovemore lawyers, they work with a larger firm called Foulsham & Geddes.
     
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  8. Jayz

    Jayz Member

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    Much appreciated.
     
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