Geekzone: technology news, blogs, forums
Guest
Welcome Guest.
You haven't logged in yet. If you don't have an account you can register now.


2877 posts

Uber Geek
+1 received by user: 698


Topic # 192251 3-Mar-2016 09:56
Send private message

My wife's an employee for a govt agency; part of her work is fulfilling a contract the agency has with a private organisation (only a few hours a week).

 

She intends to leave the agency to go it solo; that private organisation is keen on retaining her services, and are looking at contracting her directly at the point their contract with the govt agency runs out.

 

Are there any legal impediments in the way of this happening?

 

There are no restraint of trade restrictions in my wife's employee agreement, so I can't see why there'd be an issue - I'd have thought it's that private organisation's choice as to who it does business with. As long as my wife's careful to avoid using her employer's IP etc, yadda yadda, I'd have thought she was ok.

 

Of course, there may be something I'm missing here, so would appreciate people's thoughts/knowledge/experience (especially those of a legal bent, eg would appreciate your thoughts, @dejadeadnz). I'm sure some will suggest we talk to an employment lawyer, which may indeed be something we need to do if there are any real risks here - it's just knowing for sure if this is case (as lawyers don't come cheap!).

 

Also, does she need to be careful with timing raising issues of conflict of interest? For example, can she sign a contract for the work if she's still employed at the govt agency, even if the contract start date is after she leaves?

 

Thanks for any advice.


Create new topic
1709 posts

Uber Geek
+1 received by user: 169

Trusted

  Reply # 1505434 3-Mar-2016 10:54
Send private message

I would highly recommend she talks to an employment laywer so as to cover her bases properly.

 

 


2874 posts

Uber Geek
+1 received by user: 720

Trusted
Lifetime subscriber

  Reply # 1505449 3-Mar-2016 11:22
Send private message

keewee01:

 

I would highly recommend she talks to an employment laywer so as to cover her bases properly.

 

 

 

 

 

 

I agree


jmh

449 posts

Ultimate Geek
+1 received by user: 142

Subscriber

  Reply # 1505477 3-Mar-2016 12:41
Send private message

It all depends on the contract she signed with her current employer - that's what a solicitor would want to look at anyway.  Have a read through all documents that she has to see if there is any cool off period or restriction on working elsewhere.  Many people have self employment alongside normal jobs, so I don't consider it unusual.  


1169 posts

Uber Geek
+1 received by user: 872

Subscriber

  Reply # 1505749 4-Mar-2016 03:04
Send private message

jonathan18:

 

My wife's an employee for a govt agency; part of her work is fulfilling a contract the agency has with a private organisation (only a few hours a week).

 

She intends to leave the agency to go it solo; that private organisation is keen on retaining her services, and are looking at contracting her directly at the point their contract with the govt agency runs out.

 

Are there any legal impediments in the way of this happening?

 

There are no restraint of trade restrictions in my wife's employee agreement, so I can't see why there'd be an issue - I'd have thought it's that private organisation's choice as to who it does business with. As long as my wife's careful to avoid using her employer's IP etc, yadda yadda, I'd have thought she was ok.

 

Of course, there may be something I'm missing here, so would appreciate people's thoughts/knowledge/experience (especially those of a legal bent, eg would appreciate your thoughts, @dejadeadnz). I'm sure some will suggest we talk to an employment lawyer, which may indeed be something we need to do if there are any real risks here - it's just knowing for sure if this is case (as lawyers don't come cheap!).

 

Also, does she need to be careful with timing raising issues of conflict of interest? For example, can she sign a contract for the work if she's still employed at the govt agency, even if the contract start date is after she leaves?

 

Thanks for any advice.

 

 

An employee owes his/her employer an implied duty of good faith and fidelity. So one thing I'd generally rule out is any kind of work for the 3rd party organisation directly whilst your wife remains employed by the government agency. If you are properly advised by a lawyer or by her current work that they are okay with her signing a contract with the private enterprise, signing an agreement firming up her intention to provide services for them in the future whilst working for the government agency isn't necessarily an issue.

 

But ultimately it's impossible to give any specific, definitive advice without seeing your wife's employment contract and asking far too many (potentially very intrusive) questions. But before concluding too quickly that your wife's employment agreement is unlikely to present any issues, make sure your understanding of what is "IP" extends beyond things like trademarks, bespoke software, and so forth. Does your wife's future (potential) work involve applying, say, a generalised class of skills that people within a particular class of persons are likely to have (e.g. a qualified solicitor, who is a tax lawyer, moves from firm A to firm B to give clients of B advice on tax law, based largely on the solicitor's general legal knowledge, without ever relying on any know-how specifically owned/developed by firm A? If so, this is less likely to be problematic.

 

Does your wife understand the circumstances behind the private organisation's intention to end their contractual arrangement with the government agency? Is it an amicable ending of relationships? Does the government department know that it is going to end? A lot of "no" or negative answers here would suggest to me that your wife needs to be even more careful.

 

Good on you for raising issues regarding conflicts of interest but she needs to go further. IMO, the ideal scenario is to simply be upfront with her current work and see what they say. She may need to avoid doing any work relating to that enterprise whilst she remains employed by the government agency - think back to what I said about the implied duty of good faith and fidelity. When you say "government agency" - is it, for example, a Crown Research Institute, which are actually research BUSINESSES owned by the government. She really doesn't want to be accused of deliberately stinking the relationship up between the agency and the private enterprise, with a view to profiting for herself down to line. Allegations of this nature opens one up to being pursued in the Employment Relations Authority even after the end of the employment relationship for remedies like accounts of profit. UGLY STUFF.

 

All up - the risk and legal guy in me suggests treading carefully. Don't go el cheapo on advice. So what if she needs to spend a couple of grand just to be safe in the grand scheme of things.

 

 

 

 

 

 




2877 posts

Uber Geek
+1 received by user: 698


  Reply # 1505833 4-Mar-2016 09:41
Send private message

Thanks all for your responses, especially your detailed reply dejadeadnz.

As you have all pointed out, this is murky territory, with the specific details of the situation impacting on how things must play out.

My wife's employer is a Crown entity. She has discussed both her general intention to go independent and specifically the proposal to take on the contract with the private organisation, both with her manager and the contracts team. At this point they have been supportive of the former, and thus far seemingly understanding of the latter, but with the proviso they would be looking at any fishhooks. From our perspective, we'd rather know of and have a chance to sort out any such fishhooks sooner rather than later!

The employer will be in a difficult position to even fulfil the contract, should they retain it, once my wife leaves as she is now the sole advisor in the region, with no guarantees she'll be replaced. Given that, she may even be able to use this as a chance to contract back to the employer, as it may be able to get what they need sone in the area via such contracting without the overheads of premises etc.

Anyway, I'm also going to take a good look through all her documentation such as employment agreement, and we'll start to look for a suitable lawyer. Does that person need to be a specialist employment lawyer? Not sure how many there are of those in this small city!

Finally, will the work's code of conduct be something that is legally enforceable, should they end up relying on such secondary documentation? (Ie, relying on generalised clauses as opposed to dealing directly with such things as restraint of trade in the actual employment agreement.)

Thanks again.

jmh

449 posts

Ultimate Geek
+1 received by user: 142

Subscriber

  Reply # 1505919 4-Mar-2016 12:22
Send private message

Don't know if it's relevant but it's something that crops up in my sector.  If she is using materials like forms/documents/images that she created in hours that were paid for by an employer then the copyright belongs to them.  She may still be able to use them with permission (best got in writing).  If she created them in her own unpaid time, normally they are her own property, although you would need to make sure there was no discussion of ownership in her contract.

 

 

 

 


1169 posts

Uber Geek
+1 received by user: 872

Subscriber

  Reply # 1505931 4-Mar-2016 12:57
One person supports this post
Send private message

jonathan18: Thanks all for your responses, especially your detailed reply dejadeadnz.

As you have all pointed out, this is murky territory, with the specific details of the situation impacting on how things must play out.

My wife's employer is a Crown entity. She has discussed both her general intention to go independent and specifically the proposal to take on the contract with the private organisation, both with her manager and the contracts team. At this point they have been supportive of the former, and thus far seemingly understanding of the latter, but with the proviso they would be looking at any fishhooks. From our perspective, we'd rather know of and have a chance to sort out any such fishhooks sooner rather than later!

The employer will be in a difficult position to even fulfil the contract, should they retain it, once my wife leaves as she is now the sole advisor in the region, with no guarantees she'll be replaced. Given that, she may even be able to use this as a chance to contract back to the employer, as it may be able to get what they need sone in the area via such contracting without the overheads of premises etc.

 

IMO, your wife should continue the angle of discussing with the current employers further. Get things in writing and be fully transparent to them as to their response and ask for their response in writing. I think the ingredients are potentially there for mutual need/benefits in the future, so they should be amenable to laying their cards out. When you have such things in writing, even when you do decide to seek additional advice, things will be much simpler and cheaper.

 

Never let the business of choosing the right lawyer be determined by physical location. What your wife likely needs isn't Rolls Royce legal services but I wouldn't take this kind of advice from some general practitioner. Any competent lawyer can be engaged on this kind of matter regardless of distance. If she needs a range of recommendations, I am happy to provide some. Just PM me.

 

Generally speaking, things like Codes of Conduct can be incorporated as part of an employment agreement. But by its nature such codes tend to address expected behaviour of employees whilst they are working for the employer.

 

 

 

 


Create new topic

Twitter »

Follow us to receive Twitter updates when new discussions are posted in our forums:



Follow us to receive Twitter updates when news items and blogs are posted in our frontpage:



Follow us to receive Twitter updates when tech item prices are listed in our price comparison site:





News »

N4L helping TAKA Trust bridge the digital divide for Lower Hutt students
Posted 18-Jun-2018 13:08


Winners Announced for 2018 CIO Awards
Posted 18-Jun-2018 13:03


Logitech Rally sets new standard for USB-connected video conference cameras
Posted 18-Jun-2018 09:27


Russell Stanners steps down as Vodafone NZ CEO
Posted 12-Jun-2018 09:13


Intergen recognised as 2018 Microsoft Country Partner of the Year for New Zealand
Posted 12-Jun-2018 08:00


Finalists Announced For Microsoft NZ Partner Awards
Posted 6-Jun-2018 15:12


Vocus Group and Vodafone announce joint venture to accelerate fibre innovation
Posted 5-Jun-2018 10:52


Kogan.com to launch Kogan Mobile in New Zealand
Posted 4-Jun-2018 14:34


Enable doubles fibre broadband speeds for its most popular wholesale service in Christchurch
Posted 2-Jun-2018 20:07


All or Nothing: New Zealand All Blacks arrives on Amazon Prime Video
Posted 2-Jun-2018 16:21


Innovation Grant, High Tech Awards and new USA office for Kiwi tech company SwipedOn
Posted 1-Jun-2018 20:54


Commerce Commission warns Apple for misleading consumers about their rights
Posted 30-May-2018 13:15


IBM leads Call for Code to use cloud, data, AI, blockchain for natural disaster relief
Posted 25-May-2018 14:12


New FUJIFILM X-T100 aims to do better job than smartphones
Posted 24-May-2018 20:17


Stuff takes 100% ownership of Stuff Fibre
Posted 24-May-2018 19:41



Geekzone Live »

Try automatic live updates from Geekzone directly in your browser, without refreshing the page, with Geekzone Live now.



Are you subscribed to our RSS feed? You can download the latest headlines and summaries from our stories directly to your computer or smartphone by using a feed reader.

Alternatively, you can receive a daily email with Geekzone updates.