Go Back  British Expats > Living & Moving Abroad > Australia
Reload this Page >

Poaching an ex colleague, legal?

Poaching an ex colleague, legal?

Old Jan 15th 2008, 1:03 am
  #1  
Living in Perthection
Thread Starter
 
steve99's Avatar
 
Joined: Mar 2003
Location: Wickedy WA WA...
Posts: 1,868
steve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond repute
Default Poaching an ex colleague, legal?

Anyone know if there are any legal implications in poaching a colleague from somewhere you used to work?

Exact details are:
Someone starts working for a company (small outfit less than 10 employees) on a part time basis after being out of the industry for a few years, after about 6 months they then decide they'd rather set up there own company in competition, a couple of months in to being out on their own they approach someone who works for the original company to go and work for them? that person accpets the offer.

Obviously its ethically wrong, but are there any laws protecting against this in Australia?
steve99 is offline  
Old Jan 15th 2008, 1:11 am
  #2  
BE Forum Addict
 
esperanza's Avatar
 
Joined: Sep 2006
Location: 'stralia
Posts: 2,383
esperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

I know in the contract that I have for my current job there is a clause where you promise not to do either of those things! (Not to set up on your own in competition with the original company, and not to poach anyone - and not to allow yourself to be poached either!)
In reality, I don't know how likely they would be to take action... is there a precedent to refer to? Definitely worth knowing your legal position, I agree!
esperanza is offline  
Old Jan 15th 2008, 1:13 am
  #3  
BE Forum Addict
 
Billabong's Avatar
 
Joined: Sep 2003
Location: North Lakes/Mango Hill, Brisbane
Posts: 1,134
Billabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really niceBillabong is just really nice
Default Re: Poaching an ex colleague, legal?

Originally Posted by steve99
Anyone know if there are any legal implications in poaching a colleague from somewhere you used to work?

Exact details are:
Someone starts working for a company (small outfit less than 10 employees) on a part time basis after being out of the industry for a few years, after about 6 months they then decide they'd rather set up there own company in competition, a couple of months in to being out on their own they approach someone who works for the original company to go and work for them? that person accpets the offer.

Obviously its ethically wrong, but are there any laws protecting against this in Australia?
I think this depends on whether you signed a contract with the company you worked for that had confidentiality and anti competition clauses in it and indeed poaching of staff. If you didn't then I don't see it as problem but as you say it is ethically wrong. I'm not a lawyer by the way
Billabong is offline  
Old Jan 15th 2008, 1:18 am
  #4  
Living in Perthection
Thread Starter
 
steve99's Avatar
 
Joined: Mar 2003
Location: Wickedy WA WA...
Posts: 1,868
steve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond reputesteve99 has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

Thanks guys, that's pretty much what I thought, its basically happened in the company I work for but has effected me through the person who's being poached leaving (its a tough market to replace good people...) I know there we're confidentiality type clauses and restrictions around approaching clients etc, but not sure there was anything about poaching staff. I'll have to do some more digging around...
steve99 is offline  
Old Jan 15th 2008, 1:21 am
  #5  
Worongary
 
steve`o's Avatar
 
Joined: Sep 2005
Location: GC hinterland
Posts: 10,288
steve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond reputesteve`o has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

Originally Posted by steve99
Anyone know if there are any legal implications in poaching a colleague from somewhere you used to work?

?
why not go the whole hog and hard boil the bugger

no joking aside it will depend on the small print in your previous work contarct
take ot to a proffesional and get it checked out

my opinion for what its worth is as long as you dont actively try and poach your ex employers customers i carnt see anything wrong however if your going round knocking on the ex`s customers doors your well out of order

regards steve
steve`o is offline  
Old Jan 15th 2008, 1:54 am
  #6  
NO ADDED SUGAR
 
I_Will_Freckle's Avatar
 
Joined: Jul 2007
Location: Center Parcs, WA
Posts: 1,322
I_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to beholdI_Will_Freckle is a splendid one to behold
Default Re: Poaching an ex colleague, legal?

My goodness you lot are an ethical lot!

Sounds like regular business to me.
I_Will_Freckle is offline  
Old Jan 15th 2008, 2:05 am
  #7  
Has left the building
 
Geelong Gent's Avatar
 
Joined: Mar 2007
Posts: 4,079
Geelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond reputeGeelong Gent has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

Originally Posted by steve99

Obviously its ethically wrong, but are there any laws protecting against this in Australia?
Who says its ethically wrong?

How many key suppliers/customers snap up good staff?

If the individual was completely happy they would not have to move now would they? Even by offering more money or perks goes to show the existing company are not investing in their key assets wisely so let them suffer.

Do transport companies perform regular maintenance/servicing or wait till their is a problem and then sort it out?. If a company is too lazy or ignorant too protect/invest in its assets it has no one to blame but themselves.
Geelong Gent is offline  
Old Jan 15th 2008, 2:32 am
  #8  
Unspoilt by progress.....
 
The Woodcutter's Avatar
 
Joined: May 2007
Location: Redcliffe, nr Brisbane
Posts: 320
The Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud ofThe Woodcutter has much to be proud of
Default Re: Poaching an ex colleague, legal?

Originally Posted by steve99
Anyone know if there are any legal implications in poaching a colleague from somewhere you used to work?

Exact details are:
Someone starts working for a company (small outfit less than 10 employees) on a part time basis after being out of the industry for a few years, after about 6 months they then decide they'd rather set up there own company in competition, a couple of months in to being out on their own they approach someone who works for the original company to go and work for them? that person accpets the offer.

Obviously its ethically wrong, but are there any laws protecting against this in Australia?
The legality of this depends entirely upon the terms and conditions of the employment contract, specifically any restrictive covenants which may apply.

That said, whether or not an aggrieved ex-employer will enforce the covenant will depend on the circumstances surrounding the individual case. The prime motivation for the ex-employer in enforcing the restrictive covenant will depend upon their foreseen economic loss.

Hope that helps.
The Woodcutter is offline  
Old Jan 15th 2008, 2:51 am
  #9  
Harrip
 
harrip's Avatar
 
Joined: Nov 2004
Posts: 495
harrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to beholdharrip is a splendid one to behold
Default Re: Poaching an ex colleague, legal?

Its a fact of life such things happen and you have to live with it - you dont have to like it. You could spend months stewing over it and possibly incurr legal costs etc or alternatively get on with your business...
harrip is offline  
Old Jan 15th 2008, 2:58 am
  #10  
 
Joined: Mar 2005
Posts: 2,027
Vanessa is an unknown quantity at this point
Default Re: Poaching an ex colleague, legal?

sounds like normal business practice to me ........

You can't do anything unless there was/is a restraint of trade clause in the employment contract.
Vanessa is offline  
Old Jan 15th 2008, 3:10 am
  #11  
 
Joined: May 2006
Posts: 2,717
Pony is an unknown quantity at this point
Default Re: Poaching an ex colleague, legal?

Check your previous employment contract, and that of the person you intend to hire.
Many companies have anti-complete clauses in their contracts. Mine for example excludes me from working for a competitor after I leave with this very wide covering clause in a "proprietary rights agreement" I signed in conjunction with my employment contract: " a non-disclosure provision, which requires you to maintain the confidentiality of XXXXXXXX confidential, proprietary and/or trade secret information" - It would be impossible for me to work for a competitor and not utilize that information in my day to day tasks.

Check both of your contracts, and any other agreements you both signed.


Originally Posted by steve99
Anyone know if there are any legal implications in poaching a colleague from somewhere you used to work?
Pony is offline  
Old Jan 15th 2008, 3:55 am
  #12  
Account Open
 
Joined: Jan 2005
Location: Brisbane
Posts: 4,298
asprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond reputeasprilla has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

Originally Posted by Pony
Check your previous employment contract, and that of the person you intend to hire.
Many companies have anti-complete clauses in their contracts. Mine for example excludes me from working for a competitor after I leave with this very wide covering clause in a "proprietary rights agreement" I signed in conjunction with my employment contract: " a non-disclosure provision, which requires you to maintain the confidentiality of XXXXXXXX confidential, proprietary and/or trade secret information" - It would be impossible for me to work for a competitor and not utilize that information in my day to day tasks.

Check both of your contracts, and any other agreements you both signed.

hmm.... the clause above only prevents you from revealing or utilising confidential information about your employer after you have left the firm. I think you are reading too much into it, or someone else is having you believe that there is more to it than meets the eye.

I cannot think of any line of work that might be undertaken by an individual, where they learn confidential information specific to the firm, which then puts them in the position that they can't work for a competitor without having to use that same information again !
asprilla is offline  
Old Jan 15th 2008, 4:07 am
  #13  
 
Joined: May 2006
Posts: 2,717
Pony is an unknown quantity at this point
Default Re: Poaching an ex colleague, legal?

My current employer won a multi-million dollar legal suit a few years ago for just that. A competitor hired away 3 key employees. My employer won damages, won an injunction stopping the rival from competing, and signed the rival as a client selling our services.
My employer uses proprietary information and technology; my knowledge of that precludes me from working for a competitor. Non compete clauses are extremely common in business.


I'll try and choose a simplistic scenario for you:
A Coca Cola employee holds the recipe. He quits his job to work for Budget Cola; he uses his knowledge of the recipe to make budget Cola taste like Coke. Is that a line of work undertaken by an employee where they learned confidential information specific to the firm?




Originally Posted by markallwood
I cannot think of any line of work that might be undertaken by an individual, where they learn confidential information specific to the firm, which then puts them in the position that they can't work for a competitor without having to use that same information again !
Pony is offline  
Old Jan 15th 2008, 4:12 am
  #14  
BE Forum Addict
 
esperanza's Avatar
 
Joined: Sep 2006
Location: 'stralia
Posts: 2,383
esperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond reputeesperanza has a reputation beyond repute
Default Re: Poaching an ex colleague, legal?

Originally Posted by Pony

I'll try and choose a simplistic scenario for you:
A Coca Cola employee holds the recipe. He quits his job to work for Budget Cola; he uses his knowledge of the recipe to make budget Cola taste like Coke. Is that a line of work undertaken by an employee where they learned confidential information specific to the firm?
I think I understand what you're saying, but the same employee could work for a competitor and not use confidential information from him old job. This would be difficult if his job was to 'make the product taste just like coca cola', but could be done if he was working on a different drink, or his remit was to 'respond to market research to develop the product'.
Hence you would just need to be careful about exactly what role you went to, and make sure not to do anything unethical/illegal. It could be done, I think.
esperanza is offline  
Old Jan 15th 2008, 4:21 am
  #15  
 
Joined: May 2006
Posts: 2,717
Pony is an unknown quantity at this point
Default Re: Poaching an ex colleague, legal?

Sure it could. markallwood was implying it was irrelevant in every scenario - I chose a simplistic scenario where it would be very relevant. I could work for a competitor as a janitor, but it goes without saying I was saying I could not hold the same position at a competitor.
The whole premiss was to read the contracts. Everyones situation is going to be different, the presence or lack of a contract changes the amount of consideration you need to have.
No contract - no worries.
A contract and/or a non compete agreement - then read it and understand it.



Originally Posted by esperanza
I think I understand what you're saying, but the same employee could work for a competitor and not use confidential information from him old job. This would be difficult if his job was to 'make the product taste just like coca cola', but could be done if he was working on a different drink, or his remit was to 'respond to market research to develop the product'.
Hence you would just need to be careful about exactly what role you went to, and make sure not to do anything unethical/illegal. It could be done, I think.

Last edited by Pony; Jan 15th 2008 at 4:24 am.
Pony is offline  

Contact Us - Archive - Advertising - Cookie Policy - Privacy Statement - Terms of Service -

Copyright © 2024 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.