Restraint Understaking Is Killing Chances of New Job

Ash-Say on 06/05/2016 - 18:04

I went for an interview few days ago and it appears to have gone well. At the end of interview， the propective employer said if I am successful， I might need to provide copy of restraint undertaking that I signed with my current employer. The propective employer is kind of competitor and it is mentioned in my contract that I cant provide competitve services for 6 months after termination of employment.

This contract seems very unfair as nobody would wait for 6 months. This contract means I have zero chance of securing a new job within NSW

How can I turn this situation into my favour?

Ps: I don`t want to tell my existing employer about job hunt. They pay me shit and my salary rise request has been declined twice.

Education & Work

Comments

  • GameChanger on 06/05/2016 - 18:17

    There is always loop holes with contracts.

    I won't dwell into specifics, though you can easily break that non compete clause.

    • altomic on 06/05/2016 - 18:24

      Eg "after termination" - request unpaid leave from your first job.

      Your still "working" for them, but working in your new job. Good luck to them if they try anything.

      • Ash-Say on 06/05/2016 - 18:34

        If I provide this contract to new employer then they are not going to offer job. They are not going to take change which could land them in legal battle for any reason.

        Is there any way to avoid Providing contract to new employer?

        • altomic on 06/05/2016 - 22:42
          -1

          why do you have to give new employer your current contract? how will they get into trouble?

          the onus is on you.

          you have the contract with your current employer.

          not the new employer.

          if your current employer is not remunerating you to the extent that you could be then how are they providing a fair and equal workplace place within the industry?

        • Ash-Say on 07/05/2016 - 05:06

          @altomic: I have to share my contract because they are asking for it to check the restraint undertaking.

          I am not worried about current employer because they pay peanuts (well below market rate).

      • ChillBro on 06/05/2016 - 20:41

        Lol does this actually work or is it a joke?

  • currentfad on 06/05/2016 - 18:52
    +6

    "In broad terms, restraint of trade clauses are enforceable to the extent “reasonably necessary” to protect the “legitimate business interests” of the employer. The law will, for example, protect your employer’s trade secrets, confidential information, customer connections and staff relationships. However, for example, an employer can’t protect itself against simple competition from former employees. Which means that you are entitled to use any expertise acquired in the service of your former employer in legitimate competition."

    • altomic on 06/05/2016 - 22:49
      +2

      exactly. as long you are not "robbing" your old employer of their "trade secrets" then it is extremely difficult for an employer to be successful in any litigation against former employees.

      if you leave and take their xustomer list and poach all their clients, or take their project ideas and utilise them (and the old employer can prove that), etc etc. then you're in the poo.

      If you go to the new employer and just start fresh - tabula rasa, then let your old employer try something. It's going to cost them alot in legal fees.

      fair enough if the old employer is trying to protect something that you have taken (e.g. particular business strategies, clients, etc) but if you're moving from one job to another then it's going to be very difficult for them to do anything.

      • Ash-Say on 07/05/2016 - 05:13

        I am only taking my skills which have developed due to continuous hard work over years.

        I am not going to take clients and strategies so the current employer is not at risk.

        I would have stayed back if the current employer had paid me even close to the market rate but yeah they dont care about long term employees.

  • Sawtell on 06/05/2016 - 19:27
    +2

    You might breach the terms of your agreement but they will need to be able to quantify the loss to their business in order to sue for it. Unlikely to happen.

  • bluesky on 06/05/2016 - 20:38
    +3

    Many years ago, I was very naive and signed an employment contract which had a clause that said I cannot work for any competitor in the same industry for two years world-wide in the event of leaving employment. (Should have been wiser and read what I signed). The time came, I engaged an employment lawyer, and was told that it was so restrictive, that it was not enforceable. It has to be reasonable. I was told if it was world-wide for 1 month, or only in Melbourne for 3 mths, it would have been fine, but not as it stood.

    I suspect your case might also not be enforceable, as clearly you need to earn a living. Unless they are paying you the entire 6 months.

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