Being forced out of your job
Mikey 13 comments
A good fiend of mine, one with whom I started with in this industry a long time ago in a galaxy far far away, is faced with an unfair predicament today.
Here in Australia the newly elected Government scrapped the extremely unpopular AWA's that were put in place by the previous Howard Government, but of course many companies still ask their employees to sign some sort of agreement or pack your things and head for the exit.
My friend has been presented with a new employee contract today, which has some dubious requirements, but the most disturbing is a Non-Compete clause that states that if he leaves the company voluntarily in the future, he must seek permission from his current employer to get a job in the same industry. This clause practically says that if he wants to be a software engineer elsewhere, he must satisfy his current employer that they are not in competition with them. Anyone who works in the software industry knows that every other software company is potentially a competitor, particularly in our small , so my friends options would be severely limited.
I understand what his employer is asking here. They don't want him to take any of the skills he las learned to a competitor that might help give them an edge. But it's hypocritical at the same time, because my friend could only have arrived at his current level by taking what he learned at previous employers and improving upon his skill set - you know like we all do. I know I wouldn't be the obsessive compulsive web standards Nazi that I am today had I not learned a thing or two at my previous job, which I have since improved upon substantially.
And adding to the hypocrisy the company in question claims "no-one in Australia competes with what we do". So exactly what is the Non-Compete clause for then? Is it really a 'just in case'?
The bottom line is it's unfair to punish an employee for being good at what they do, and it's reasonable to expect that should they move on, they will continue to use their skill set to the best of their ability and even surpass it.
As of a few minutes ago, my friend says he has no intention of signing the agreement, but knows the alternative offered by his employer is to be given 4 weeks notice. Kudos to him to sticking to his guns, but it sucks for a guy with a large family to support to be faced with being forced out of his job.
Has anyone else had their hand forced by an employer?
A couple weeks ago in California no-compete clauses were deemed unconstitutional. I signed one more than ten years ago and then did not tell my employer where I was going when I left. They pushed and I told them it was my private business and when I talked to HR they concluded it since it was an at will employment state I had no requirement to disclose who my new employer was going to be.
Laiste
Thursday 18th September 2008 | 10:24 AMI think he should kick up a big loud stink about this. This is ridiculous in this day and age to forced to something like that. Such an unfair act by an employer should be made as public as possible! I'd love to hear an employer actually justify such a position. What could possibly justify such a position?
andrew
Thursday 18th September 2008 | 01:14 PMwhat a pile of crap, how many people swap jobs within a particular industry for example, in the catering industry chefs go from one restaurant to the next. get permission give us a break.......
Jake
Thursday 18th September 2008 | 01:28 PMMike, love the new pic mate!
The clause, while being a little ambiguous and possibly unfair, all he has to do is ask for a date of exclusion to be put on the clause. This is fairly common with workplace agreements, especially with high end workers and executives, so he should just ask that a period of one month after the termination be placed on the clause.
Kim OJ
Thursday 18th September 2008 | 02:00 PMThis type of clause would be illegal in Denmark - as it should be!
Chris
Thursday 18th September 2008 | 03:22 PMI studied industrial law (a very long time ago), but back then, it basically said you cant stop a person working in the same industry if it is their career / line of work. ie. restrictive covenants.
Given that Australia is supposed to be in the midst of a skills shortage, Im surprised the hiring company would even try something like that. A company I used to work for (National 1) tried the same thing with its sales people. They were expected to "bring" in new clients when they joined but couldnt take them if they left. Anyway, no one signed it and the company basically didnt enforce it because they'd lose staff and clients.
extract
http://www.apesma.asn.au/adviceonline/contract_info/employment.asp
"Restrictive covenant - The employer may wish to include a clause that seeks to restrict where or with whom a departing employee may work. Such clauses usually proscribe, for a set period, clients of the company, business rivals or geographical areas as subsequent employment fields for the departing employee. It is reasonable to expect a lump sum payment for agreeing to the restrictions. The inserted clause should clearly identify the restrictions, time frame (both of which have to be reasonable in the circumstances) and the percentage of salary or fixed sum payment offered as compensation for acceptance of the restrictions."
However
"The courts have long held that such a clause will only be enforceable against the employee if the restraint is reasonable...the interpretation of what is reasonable is quite narrow"
"In general terms, however, it is doubtful that there would be many instances where a ...clause forbidding employment would be enforceable in a contract of employment for engineers and scientists."
Rodney
Thursday 18th September 2008 | 06:08 PMYou do realise that clause is not worth the paper it's printed on, right? It's 100% unenforcable by Australian law. Almost every single companies tries this shit on now-a-days but they all know it's a bluff.
It is not legal to restrain someone from earning an income, unless you compensate them. As Chris says, they simply cannot enforce that contract. So sign away. The only legal way they can prevent him from taking a new job is if they compensate him for lost earnings. I know this for a fact - just like Chris, I studied this at Uni (in 2004) and have also seen this very kind of case tested in the real World. A small business I worked for back in 2002 tried this one on an ex-employee and they couldn't even get a lawyer to take the case.
So in effect, if they tell him he cannot take a job, they must pay compensate him the loss of income. So tell him to sign up the contract, then offer him a job for $200,000 a year in a phoney competition company and split the difference!! :-P
MykOdD
Tuesday 23rd September 2008 | 07:16 AMHere in NZ, our national party is offering similar laws (the 90 day bill, where they can fire you within 90 days for no reason) as bait to get employer's votes, it's been pointed out it is not only unnessisary with the employment contracts bill, but thanks to your country's silly laws, we have an example of ways in which they actualy keep the unemployed from taking jobs they may be fired from for no reason...
Ironicly, I have had many an interesting job, and the only one that made me sign a contract stating i would not work in the same industry for 1 year if i left was an 0900 psycic like company called "Smilelines" however, i suspect they were Aussie owned, as we worked with an aussie complany and took their excess calls during peak times. Of course, at the eand of my employment there, I did all my rune readings for free, because frankly I dont think i should be paid more than a coffee and a donut for talking with the divinities over inceanse....
Clare
Friday 21st November 2008 | 02:16 PMI am in a situation where I am being forced out of my job after working for a company for 29 years. It is for a different reason that your friend. I work for an educational institution in the United States. I learned in the beginning of my career that the only way to move up in this company was to apply to another position to gain skills needed to move up the ladder. Also, I have been taking classes off and on throughout the years and will have my BA after this school term. I moved up from the basic office assistant/clerical position (an entry level position) up at least four levels to an Administrative Assistant II and now am a Personnel Officer II. There have been many changes since I took my present position 5 years ago. It has evolved to more of an Humjan Resource Specialist which I am not and do not care to be. I had no problems with handling my job until a new supervisor was hired in my area 2 years ago. This supervisor did not have any experience working in a academic environment. I helped her along quite a bit and still do today. Over the past year she has written me up for errors and not completing tasks timely. She has not been clear in her instructions, nor did she give any deadlines. We have weekly staff meetings where updates on projects are discussed. Never did she set a deadline or mention to me that there was any problem until February of this year. Since the reprimand is on my file, I am having difficulty in getting jobs that I am qualified for that are at a lower level than my present position. The reprimand can and is used to automatically disqualify a candidate. Since February 2008 I now have two other reprimands and one more will lead to a termination. It is also difficult to work in this situation and concentrate on such a detail oriented and demanding job. I am doing the best that I can. I do belong to a union which has not done very much for me at this point. There has been two grievances filed (February '08 and July'08). I admit that I have made mistakes and or did not catch errors during audits. I have always been one to learn on the job, however, there is no training offered at my place of work for this position. She has since replaced two of my co-workers and added another position at the same level with people younger people who have or are pursuing a Master's degree with HR and labor issues as part of their curriculum and hired without any academic personnel processing. My supervisor has a Master's degree, is 5/6 years older than I am and is totally dependent on her staff to know personnel issues front and back while she does not know it herself. Therfore, I have no one on this team that can help or guide me on these processes. My supervisor feels that since I am the senior employee of the group that I should know all of these functions. There are quite a bit to processing personnel. My supervisor is also expecting detailed reports that require lengthy research and training and mentoring several department staff members in personnel processing. It is hard for me not to make mistakes under these circumstances. I am second guessing myself all the time and taking longer to do my job. I am faced with loosing my job after 29 years and to compete for a much lower paying job with younger people that have their degrees. With the way things are now in the workforce, it may be a while before I land a good job and it may not necessarily be in this institution. If I am terminated, I will may not be able to get unemployment and I will not have health insurance for myself or my two teenage daughters. Things look pretty bleak right now.
Monty
Wednesday 17th March 2010 | 05:34 AM...in response to this comment by Anders. I signed one one those documents years ago, and as it turns out, my DM told me when I was preparing to leave to basically ignore the "no compete" clause, because it was essentially unenforceable.
Henk V
Wednesday 17th March 2010 | 08:23 AMKim O.J.! If the world was like Denmark, we'd only have to sort out a few issues. The northern European countries have a lot more freedom and sensible notions that all of the rest of us put together.
You have to love the guy being paid to work on psychic claptrap.. what a dream job! Observing a whole new species devolving!
Henk V
Wednesday 17th March 2010 | 08:51 AMOnly contracts stating "Commercial in Confidence" hold any sway. If an employer hits you with a lesser contract ask them to go the whole hog and get a "C in C".
Anders
Thursday 18th September 2008 | 09:56 AMThat blows dude. I hope you get a better job. Good luck too you.