Employment contract clause - advice needed

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  1. #1

    Employment contract clause - advice needed

    I have been in my current job for over and year and the other day, one of my company's direct competitors approached me and offered me a position. Now I have an interview lined up. Im pretty sure I'l be leaving my current job, however when I signed my employment contract there was a clause in it that said:

    "you must not work for any direct or indirect competitor within a year of leaving the company"

    I spoke to a few people b4 I went to sign my contract and they assured me that my current company would not be allowed to keep me from working after I leave them. Afterall, "direct or indirect" means I wouldn't even be able to work at Beard PaPas or pursue a career as a taxi driver never mind working for a direct competitor. Anyways, I've always been pretty confident that if I DID want to work for Beard PaPa or be a taxi driver then it would b ok, cos I dnt think my boss is that petty. But now Im wondering whether she'll sue me if I go to a direct competitor. She'll do it just because she can and she's spiteful.

    What do u lot think? Can she sue me?

  2. #2

    Join Date
    Oct 2006

    There is not a lot of HK case law but though a competition clause under HK law is relatively weak compared to other jurisdictions it may be valid dependent on your job and the job you are going to work in. However, 6 months is too long and combined with the fact that your competition clause is too general (and the court will ignore it) your friends may be right though it depends on your current and future situation (type of work etc). Good luck!

  3. #3

    Join Date
    Nov 2005
    Cramped island

    well, she can sue you likely but whether she will win or not its abit tricky.

    if you can prove that you can't survive without working in this line for 1 year, then you can probably ask the court to void that clause on such basis.

    i think the usual clause is like 3mths or so.. seldom we see a full 1 year non-competitor clause and seldom we see that enforced unless the existing company is willing to pay you 1 year's wage for you not working in the other company

  4. #4

    Join Date
    Dec 2006
    Sai Kung

    We have similar clauses in our contract and had several discussions with other employees as to how enforceable.

    HK law is pretty weak in this area and our understanding is that if you have signed it then there is a chance that a court would uphold it.

    In our case, there is an area restriction during the time period so in my case, I could not work in Sai Kung penisula but could work HK Island or Kowloon - but not many industries probably have work outside Central so may not be so easy to apply.

    Probably would be able to get overturned if did restrict you from working in HK but might have to go through courts to be able to work out.

    And yes, some bosses could be that vindictive... Even if don't expect to win.

  5. #5

    If that's exactly how your non-competition clause is phrased, I would think it difficult by your employer to enforce. The essential reason is because you need to earn a living, and courts are aware that such clauses will prevent you from doing what you are good at doing, therefore, will likely strike out the offending clause.

    That's why employer's now like to use "garden leave" clauses instead.