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Ask Leon Your Own Question
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42668
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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My former employer is claiming they will sue me for the

Customer Question

Hi Patrick, my former employer is claiming they will sue me for the non-compete clause. While employed with them I applied for a job online through an agency and went to an interview and then got offered the role. I have never worked for this client and to my knowledge my former employer only supplied software to them but not services. They supply software to many clients in Sydney.
Can they stop me from working there? And if they send me a summons can they delay the start date at my new job?
Submitted: 1 month ago.
Category: Australia Law
Expert:  Leon replied 1 month ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Expert:  Leon replied 1 month ago.

Good Afternoon

Are they in competition with your employer?

Customer: replied 1 month ago.
My previous employer provides software & services. They sell software to clients and then they sell consulting services for that software. It is not a competing client, it is however a potential customer they can make money from providing consulting services to.
Expert:  Leon replied 1 month ago.

But does your new employer compete with your former employer? This is the question I asked

Customer: replied 1 month ago.
No, it is not a competitor. It could be a client. By contract says I can't work for clients of my former employer for 12 months. Perhaps it's not the non-compete clause that I meant, it's working for one of their customers...
Expert:  Leon replied 1 month ago.

Can you email me the clause so I can read it? I need to be certain on what I am responding to.

Customer: replied 1 month ago.
Hi, RESTRICTIVE COVENANT AFTER TERMINATION OF EMPLOYMENT
(a) You expressly agree to:
(i) not at any time either during the employment or for the period of 12
months after the termination of this Agreement for any reason to
undertake or carry on or be employed or directly or indirectly concerned
or interested either as employer, employee, partner, consultant,
associate, agent, director, shareholder or in any other capacity with any
business that was a client of the Company in the 12 months preceding
the termination of your employment;
(ii) not at any time either during the employment or for the period of 12
months after the termination of this Agreement for any reason accept
work from or attempt directly or indirectly or by visitations, letters,
advertisements, or otherwise to obtain customers, suppliers or clients of
the Company for yourself or for any other person, firm, company or
employer engaged in any business in the data warehousing and business
intelligence industry in the Asia Pacific Region and/or Australia and/or
New Zealand;
(iii) not at any time either during the employment or for the period of 12
months after the termination of this Agreement for any reason for yourself
or for any other person, firm, company or employer solicit, interfere with
or endeavour to entice away from the Company any person, firm or
company who at any time during this Agreement is a customer, supplier
or client of the Company;
(iv) not at any time either during the employment or for the period of 12
months after the termination of this Agreement for any reason and either
on your own account or for any other person, firm, company or employer
solicit, interfere with or endeavour to entice away from the Company any
person who at any time during the continuance of this Agreement will
have been a Company employee or consultant;
(v) not at any time without the authority of the Company divulge to any
person any information in connection with the Company or any of its
businesses or customers which you may have acquired during or as
incidental to your employment; and not to represent yourself as having been an employee of the Company or
having been associated with the business of the Company without the
prior written consent of the Company having first been obtained.
(b) You agree and acknowledge that the remedy at law for breach of any of your
obligations under this clause would be inadequate and you agree that temporary
and permanent relief by way of injunction against you may be granted in any
proceedings which the Company or any persons on its behalf may bring to
enforce any of the provisions of this clause without the necessity of proof of
actual damage suffered by the Company.
Customer: replied 1 month ago.
Hi, did you get the clause?
Customer: replied 1 month ago.
Hi, can you please provide your email address so I can email you the clause....
Expert:  Leon replied 1 month ago.

Good Afternoon

The first part says you cannot associated with a party that was a client of the company you work for at the time you left or 12 months before you left.

You cannot work for any company that is involved in any business in the data warehousing and business intelligence industry in the Asia Pacific Region and/or Australia and/or New Zealand;

These are the ones that will affect you.

So if they are a client or former client and or work in the industries set out you are in breach and they can sue you.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 month ago.
Hi... I just updated my credit card details, kindly check and respond...
Expert:  Leon replied 1 month ago.

I do not deal with the credit card side only the question.

Customer: replied 1 month ago.
But if they only supplied software does that mean it's a client?
When I resigned I was bullied, intimidated and threatened and they made it very personal.
What course of action do I have if they stop me from working? This is my lively Hood and family responsibilities at stake....
Expert:  Leon replied 1 month ago.

He cannot be involved in the industry at all. He does not have to be a client.

Each paragraph is separate.

You can challenge the clause but you have to go to court.

Also if you were bullied and they knew about it you can sue them for not doing anything about it.

Because they have sued you, you will have to fight them in court. If you dont go to court they will win in your absence and this will be worse.

Customer: replied 1 month ago.
But the new role is with NBN who are in telecommunications, not business intelligence.
Expert:  Leon replied 1 month ago.

If they are not in the industries set out in the clause you have to apply to the court to have the application struck out.

You still have to defend the claim.

Customer: replied 1 month ago.
if I recorded the resignation and it can be heard that I was intimidated... Can I use that to my favour? I know it is illegal to record a conversation without concent.
Expert:  Leon replied 1 month ago.

You have to sue for the intimidation separately.

It has nothing to do with the confidentiality and non competition clause.

They are separate issues.

If you recorded the resignation and there is confirmation that they knew about the harassment you cannot play it in court but you can use it in your affidavit. You have to spend some money and have a lawyer help you.

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