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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22976
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I need help with an independent contract i have please, I am

Customer Question

Hi, I need help with an independent contract i have please, I am leaving my current job as a courier and moving to another company. I have had to give two months notice. My other job waiting for me cant wait that long so i asked if i can leave earlier. My current company said no so i offered $2500 to leave earlier and they said no. Is there a way around this?
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

That seems pretty petty of the present contractor. If you just tell them that you are going anyway this would be a breach of the contract, but the damages would be hard to prove. They would need to claim for the losses caused by leaving early, and this would need to be proved. In fact they wouldn't likely have any losses at all because they could replace you. The only risk is if there is a specific clause in the contract which says there are penalties, or if there is a clause which says you cannot work for another company within a time period after leaving. You need to check for those clauses in your contract. If not, you could just tell them you are leaving and tell them the date and it is unlikely they would try to stop you, although they may try to claim damages.

Customer: replied 1 year ago.
Hi Chris,Thank you for your reply. I have attached my contract with Kiwi Express Couriers. My employer and i are in a situation where they are going to stick to every word of the contract and give me any leighway. Another thing now is that my Clutch on my vehicle has just broken and its going to cost me around the $2500 mark to get it fixed. Kiwi Express Couriers told me that i will have to get another van on the road to keep working which will cost me around $200 a day to rent plus fuel i have to fill up with. I wont be making any money i would be making a loss. I cant seem to find anywhere in my contract where they require me to get another vehicle at my cost for circumstances out of my control- are they able to enforce this?
Expert:  Chris The Lawyer replied 1 year ago.

I can't open the attachment, but the contract is not going to say you must hire a van, but just say you have to perform the contract, and while your clutch is being repaired, you would under their requirement, need to use another van to perform the contract. If you don't perform the contract they could either dismiss you, which wouldn't be a bad result given you want to leave, or try to sue you for non performance. In this case I think you need to set up a meeting with their senior management and explain you don't want to continue, that you will not be able to work while your van is being repaired, and that you want to bring the contract to an end. If they refuse, then you can just tell them, you are cancelling because their requirement you work at a loss is unreasonable and a breach of the contract. There is a risk they could try and sue you but the damages would not be a large amount and the cost of suing would exceed what they would get.

Customer: replied 1 year ago.
Sorry Chris, Here is the contract again.
Expert:  Chris The Lawyer replied 1 year ago.

I have now read the contract and there are some difficult issues for you. The principal problem is that there is a no competition clause for six months after this contract comes to an end. So even if you give them two months notice, they could insist that you not work for the competition for a further period of six months from when the contract comes to an end. The contract does also specifically require you to use a replacement vehicle if yours is not available. If you want to get out of this contract, you will need to negotiate an exit that means that you can work for somebody else and the no competition clause will not apply. Otherwise if they get difficult, they could stop you from working for six months. The contract is pretty one-sided in their favour