I am a real etate salesperson (an independant contractor) and been in the business for 11 years. In Feb 2012 I joined an 'alternative' real etate company - leaving my previous company after 10.5 years.I signed an initial contract as a 'home finder (prospector) containing a 90 day restraint of trade in Feb 2012. After a few weeks, I was given a letter saying I would be graduating to the role of a salesperson on 1st March, with a new Contract (dated 1/3/12) for me to arrange to be endorsed ... the signing of this contact was overlooked.On 4/7/12 - after numerous conversations with the Principal about how I wasnt in alignment with their different ways, I resigned.The day after, I received an email outlining the clauses in my 'Contact for Service', including the restraint of trade, protection of client databases and repayment of training costs (I had to attend a Sydney training seminar as part of my induction).In your eyes, would these clauses be enforceable?Thanks for your help.
II have send a letter to the company giving the reasoning leading up to my decision to resign and advised that I would be getting legal opinion as to whether the clauses in his email were enforceable.
Hi Welcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
If you have not signed the new restraint of trade clause which was supposed to come into force after the 90 day period expired, then there is no current restraint of trade in my view. In addition, unless you agreed that the training costs should be refunded, there is no contract requiring you to do so.
The protection of the client databases would be effective because that is part of the arrangement and you should be careful not to keep any such databases, and should tell the company you do not have any and will not be using these in any event.
There is a small risk they could enforce the unsigned contract, but I think this is unlikely-that is just a cautious lawyer. What they may do is to try to sue you and this may involve you in some cost but their chances of success are small. What you could do as a proactive defence would be to say you were in fact an employee and you have been constructively dismissed and that you are entitled to damages. You could then negotiate a position of each party withdrawing and agreeing to take no steps.
LLB MMgt FAMINZ 32 years qualified as lawyer
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