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Legal Forums » Employment Law - Discussion Forum » Recent ex employee sought employment with our Clie


Started Jan 14 2013, 16:53

Jan 14 2013, 16:53

Hi,

I am new to this but am hoping to get some advice on a current situation at our small business.

One of our employees recently left (November 2012) us to work at another company which is in the same business industry as us - this was fine. We understood the reasons he left and were fine with his decision.

We have now found out that he has just left the employer he left us for, for a position with one of our clients who sub-contracted their work out to us. On looking through his emails prior to his departure from us, we have found evidence that he had forwarded our clients contact details to his own personal email address with the obvious intention of following them up with work.

As part of his termination paperwork, our ex employee signed a document containing the following confidentiality agreement:

'Confidentiality following termination of employment

Irrespective of how your employment ended, you will not, while in the employ of the Employer and for the period after employment described below:

a. Within
i. 100 kilometres (but if a court holds that too wide then)
ii. 30 kilometres (and if a court holds that too wide then)
iii. 20 kilometres (and if a court holds that too wide then)
iv. 10 kilometres
of the Employer’s address as given in this Contract (collectively, the restrictions by area)

b. For a period when your employment starts until:
i. 24 months (but if a court holds this to be too long then)
ii. 12 months (but if a court also holds this to be too long then)
The restriction continues to apply for 12 months after the contract is terminated. However, the restriction ceases to apply to any information that comes into the public domain (otherwise than by breach of this Contract)
iii. 9 months (and if the court also holds this to be too long then)
iv. 6 months
after your employment ends (collectively, the time period restrictions)

c.
i. Solicit, canvas, induce or encourage any person or entity who is an employee or agent of the Employer to leave employment of the Employer
ii. Solicit, canvas, approach any person or entity who was during the term of your employment a client, customer or patron of the Employer, with a view to establishing a relationship with or obtaining the custom of that person or entity in a business which carries on the business of a similar or related nature to the Employer
iii. Interfere, or seek to interfere, directly or indirectly, with the relationship between the Employer and its clients, employees or suppliers in the conduct of the Employer’s business
(collectively, the restrictions on activity)

The above clause is construed and has effect as if it were the number of separate sub-clauses which results from combining the prohibition in the opening lines of the above clause with each sub-paragraph and combining each such combination with each sub-paragraph. If any such separate resulting sub-clauses are invalid or unenforceable for any reason, such invalidity or unenforceability doesn’t produce or in any way affect the validity or enforceability of other such resulting sub-clause.

All records, documents (electronic or otherwise) and other papers (and any copies or extracts) made or acquired by the Employee during the course of employment are the property of the Employer. These items are to be delivered to the Employer when the Contract is terminated or when the employer so directs.

The Employee delivers all private and other diaries and address books to the Employer at any time as requested by the Employer and immediately upon the giving by either party the notice to terminate, that contain client information, trade secrets and any other information relating to the Employer. This includes all computers, electronic devices, electronic data and databases of all descriptions.

All parties agree that for any breach of confidentiality damages alone are an inadequate remedy. All parties consent to the Employer obtaining injunctions and specific performance.

Nothing however, is intended to stop to Employee from using the non-confidential skills and experiences acquired in the services of the Employer'



Is anyone able to advise me if the circumstances explained are in contravention of the confidentiality clause above and if so, what actions are we able to take. We are only a small family owned business and expected more of a trusted employee.

Any advice would be very much appreciated.

Thanks
Md Shohel
ID#12637658



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