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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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We have a staff who has worked company last 10 years and he

Customer Question

We have a staff who has worked for our company for the last 10 years and he greatly has contributed to the revenue of the company during his service. He has been discontent with the management for the past year, finally ending up in argument, verbally gave a notice of termination. Based on this, the director sent him an email as acknowledgement of his intended resignation giving him 2 weeks-hand-over-instruction to be followed. His email password ***** been reset so that his access can be limited only to the business hours when the email account can be made open for him when he is in the office. His access to CRM has been restricted due to the concern that he might take some confidential client information as he professedly let the management know that he would set up a competing business. The notice of termination was taken effective as of 17th of November 2015, but he didn't come to work afterwards, no hand-over procedures took place as instructed. Most of his client cases pending have been left in jeopardy, as he hasn't documented properly for the successors to follow through. Most of our clients are international students and when not timely attended, their visa status get screwed up. If some errors happen like visa refusal due to the fact the staff simply dropped off the case, not handing over, can the company do against the staff who is the cause of this avoidable incident?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

If the employee was negligent you can sue him.

Can you show he has been negligent?

Customer: replied 1 year ago.
He has failed to upload documents to CRM. No proper handover has been done yet. We are getting complaints from his clients that he is not responding to any calls when he was given clear instructions to handover his clients to the new staff introducing her so she can do the follow up.
Customer: replied 1 year ago.
I would also like to know if we can stop the solicitation of clients as he is already planning to establish the business with the similar structure. if we notice certain activity like current clients are going to him cancelling enrollment through our Agency and changing agents, can we take some action against it.?
Expert:  Leon replied 1 year ago.

Did you have an agreement with him and did that agreement have a clause in it about non solicitation?

Customer: replied 1 year ago.
the agreement was given to him with strict guidelines but he never signed or returned it back.
Expert:  Leon replied 1 year ago.

The you can enforce it against him for a breach and sue him for the breach and loss of income.

Can you calculate the losses?

Customer: replied 1 year ago.
we may be able to after we have lost few clients.
Expert:  Leon replied 1 year ago.

Good Afternoon

If that is the case then you can sue for the looses

How much are you looking at?

Customer: replied 1 year ago.
It is hard to calculate the amount of the losses, as we might not be able to know how many clients he have solicited for his benefit after the resignation at this stage. However, my question lies here is that if we haven't put it in writing in the agreement about non-solicitation clause, are we not going to be protected when that happens?
Customer: replied 1 year ago.
Furthermore, while under employment, he approached our business customers (education providers) in person and made a direct deal with them about $100 cash gift card offer personally directed to him each time his service is rendered through our company, which has been kept in secret with the management and it was only after his resignation when the management found out about this secrete dealings he had from his email trace. Would this be addressed against him too?
Expert:  Leon replied 1 year ago.

Good Morning

You have to work out what you have lost. HIs benefit is not relevant.

If the clients earned you $100K a year and they leave that is your loss.

If there is nothing in writing you will have a problem because there is nothing stopping him.

Anything he has done during the employment is illegal and he should not have done work outside of the employment and any profits he has made in this way you can claim.