NSW Soliciting an employee

[Oli]

hi,

I have started my own business in the same industry that I currently work in. I have told my employer all along when the company I made an offer accepted.

I don’t recall signing a contract, however I would like to confirm what I know is in their contracts.
It stats “not to encourage or attempt to solicit the employee to cease employee by the company”

My question is I have worked a long side an employee and are close friends, when I informed them I was leaving they asked if there was a position vacant for them. ar this stage I have a position for them.

This person has made it clear they haven’t been happy at their current employer for a while and have actively been looking even before I purchased a business.

So would this classify as soliciting an employee even though I don’t believe I have encouraged them to leave or had this discussions during work hours?

 

[Rod]

This is a difficult area and relies on the exact wording of the employment contract, and on the actions of both parties, both before and post ending of employment.

To 'solicit' can have a wider legal meaning than just you asking but it may be possible to get the result you want, though note that if the employer wants to go after the employee regardless of their legal position, they can. I have no idea if the employer would do so but you should keep this in mind. Some employers can be bloodyminded, some give up even if they have the legals right worth pursuing.

There may also be other clauses in the employment contract that need to be reviewed in case there are no poaching of clients clauses as well. May not be applicable in your circumstances depending on the nature of the work.

If you are wanting proper advice rather than opinion, send me an email found at www.vichelp.com.au with your contact details.