Restraint of Trade Clauses

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Handsomedan

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#2856167 25-Jan-2022 16:42

Geektastic: There's never even bargaining power. Want to buy this car? Sign this contract and give us $250,000 or don't.

Say WHAT now? I wouldn't even look at a car worth $250,000, let alone get into a negotiation over it!

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#2856262 25-Jan-2022 18:32

MikeAqua: Tova is an educated, intelligent adult. She had the means to get legal advice when she signed her employment agreement.

O'Brian may well have taken legal advice and additionally acted on the basis of previous experience or common practice in NZ media. Eg; You're going to radio after this? Not a problem off you go it's a different market. Fast forward to today, new owner, change in attitude, legal tactics define new outcome.

Handle9

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#2856426 26-Jan-2022 08:17

Geektastic:
alasta:
The commercial implications of this could be quite significant.

It was my understanding that Mediaworks were planning to launch Today FM in the next couple of weeks. Because Tova is such a critical component of the station, this ruling will delay the launch of the entire station. That means that Discovery and NZME will have several weeks to get their 2022 morning news programming ramped up, leaving Mediaworks on the back foot when they eventually launch.

It's poor risk management from Mediaworks, but I don't believe that this ERA ruling serves the public interest.

It's not supposed to.

It was a contract dispute between two parties. There is no national interest component.

If Government thinks there is one, it is on them to convince us and change the law, not the ERA.

There is absolutely a public interest component to the legislation and case law. It’s also pertinent that the ERA are not a court and so may not be correct in law.

https://thespinoff.co.nz/media/26-01-2022/the-worrying-implications-of-the-tova-obrien-decision

Geektastic

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#2856500 26-Jan-2022 10:30

Handsomedan:

Geektastic: There's never even bargaining power. Want to buy this car? Sign this contract and give us $250,000 or don't.

Say WHAT now? I wouldn't even look at a car worth $250,000, let alone get into a negotiation over it!

It matters not whether the car is $2000 or $2m - you still have the same uneven power. The dealer will insist on his contract being signed if you want the car. It is no different with employment - if you want the job, sign the contract. If you sign it, don't whine later that you do not like what you signed.

In this case, all she needed to do was take a holiday between jobs and this ludicrously expensive exercise would never have taken place.

Paul1977

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#2856598 26-Jan-2022 12:56

The power balance is very different depending on how hard the role is to fill.

Varkk

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#2856599 26-Jan-2022 13:00

Geektastic:

It was the same for her: sign or don't get the job. There's never even bargaining power. Want to buy this car? Sign this contract and give us $250,000 or don't.

She knew what she was signing. She had legal advice. Actions have consequences. QED.

She did get advice and the advice was the new role was dissimilar enough that the clause wouldn't apply. Also She presumably had that clause when Mediaworks owned both the TV and radio and would have been grandfathered in with the change of ownership of her division. There is in fact a lot of grey area in this case and is possibly open to an appeal, however the process for that will probably take longer and cost a lot more than the couple of months she now has to wait.

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insane

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#2856667 26-Jan-2022 14:35

Varkk:

Geektastic:

It was the same for her: sign or don't get the job. There's never even bargaining power. Want to buy this car? Sign this contract and give us $250,000 or don't.

She knew what she was signing. She had legal advice. Actions have consequences. QED.

She did get advice and the advice was the new role was dissimilar enough that the clause wouldn't apply. Also She presumably had that clause when Mediaworks owned both the TV and radio and would have been grandfathered in with the change of ownership of her division. There is in fact a lot of grey area in this case and is possibly open to an appeal, however the process for that will probably take longer and cost a lot more than the couple of months she now has to wait.

And from a billable hours point of view, no employment contract lawyer will want to pick up this case and have these clauses quashed for good.

raytaylor

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#2858143 29-Jan-2022 13:52

1101:

Ive been down this rabbit hole with an over the top restraint of trade clause.
I got legal advice & was advised its wasnt enforceable , in my case .

As many of you know, I have had some recent experience in this field.
Our lawyers argument went along the lines that it shouldnt be enforcable (i forget the exact reasons behind the argument) but the judge's words were "thats a very antiquated way of looking at it".

Basically its become more enforceable within the courts in recent years as opposed to becoming less enforceable.

Ray Taylor

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raytaylor

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#2858144 29-Jan-2022 13:59

alasta:

What would happen if you just left without serving out the 3 month notice period? I guess your employer could sue you, but how would they quantify the damages?

The better option is to just not turn up for 3 days causing the employer to invoke the abandonment clause in the contract instead.

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