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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5362
Experience:  Dip Law LPAB - Sydney based lawyer
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I own a blind business and just found out he has been

Customer Question

I own a blind business and just found out he has been selling the same product using his website on my time how can I sue him and what is this called technically?
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
He was employed as a salesperson I've paid him well and to my disgust found out he's been gaining work using my time,knowledge, and marketing strategies using his own website!
Customer: replied 1 year ago.
My phone number is(###) ###-####thanks ! This is really urgent as I need to fire him ASAP and take legal action against him
Customer: replied 1 year ago.
Can I sue him for stealing intellectual property
Expert:  Patrick H. replied 1 year ago.

It would assist if you can elaborate on what sytems, strategies or documentation he has taken or used for his private purposes.

If you would like a phone call then you should indicate what times would suit for a phone call.

Patrick

Customer: replied 1 year ago.
Please call at Perth time 9am on(###) ###-####thanks . He hasn't to my knowledge stolen anything but created a website behind my back and using it to solicit work in direct competition to my company as I'm his employer. He also uses my strategy for creating leads
Expert:  Patrick H. replied 1 year ago.
I have sent you an offer for a phone conversation. Once you accept I will contact you ASAP after.
Customer: replied 1 year ago.
I've already paid 90 dollars for no response !
Customer: replied 1 year ago.
Can youp lease call me ive paid 90 dollars to so far get no advice .(###) ###-####urgently!
Expert:  Patrick H. replied 1 year ago.

Sorry, but extra charges are supposed to apply where a phone conversation is sought. Noting you are unwilling to pay for a phone conversation, I will attempt to address your answer as follows.

Your case against your employee will be clearest if you have a written contract that specifically restricts your employee from competing with, or to use your intellectual property for private purposes, but absent a clear contractual term to that effect, your ability to take action against your employee is problematic. This is one of the reasons it is important to have a written and well thought through employment contract for all staff.

Although it creates some uncertainty, without a suitable written contractual term, you may still be able to take legal action or disciplinary action if you can demonstrate your employee has misused something that is the property of you as the employer (whether physical, or intellectual property, or whether he has use his time working for you to run his own business) then it would appear he has breached his duties to you as his employer. Essentially he is breaching an implied term of his employment contract.

acted in a way which conflicts with his duties to you as an employer, but whether this is grounds for a law suit or for summary dismissal will depend on exactly how serious the misconduct is. Absent a clear contractual prohibition, a court or the Fair Work Commission will not find that an employee has done anything wrong just because he does some similar work outside of normal hours, but may take a far more serious view if your staff member has taken your companies customer list and is trying to convert your customers to his. The former is not a problem at all as far as the law is concerned, and the later would likely be grounds for both summary dismissal and a damages claim.

If you cannot identify anything that your staff member has actually taken from your company, or cannot prove he has been operating his competing business on your time, then your case against him may be problematic.

If you can prove he was working on your time, then he is clearly in the wrong, but if not, and you are only really able to establish that he is operating a business in competition with ou, then the following link may assist your understanding of what employees are allowed or not allowed to do even without a formal contract:

http://www.austlii.edu.au/au/journals/UNSWLJ/2001/27.html

If you can show he is in the wrong, whether you can simply dismiss your employee will depend on how serious his misconduct was. One phone call on your time for his own purposes, is likely only cause for a warning, whereas spending hours running his own business when he should be running yours, would likely be accepted by the Fair Work Comission as grounds for summary dismissal.

If you have a follow up question I'd be happy to assist you further.

Otherwise, please rate my answer.

Patrick

Expert:  Patrick H. replied 1 year ago.
i now you have reviewed my answer.
Of you have a follow-up question please ask, otherwise please rate my answer.
Thanks,
Patrick

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