Non Compete Clause

[Letmeteach]

Good morning everyone,

I've been working at the same government school through an agency for the past three years. The agency has came under bad management as of late and my school is in the process of terminating their contract this coming October due to their increasing frustration with the agency. My contract, however, expires April 2012. The agency has offered me work at another school in a different province though I would have to relocate. The school has offered to employ me directly. My contract, which is written in english (no thai contract at all), states "The employee may not accept any employment of any kind from clients or former clients of the employer for a period of one year after employment is terminated". I approached the owner yesterday to see if we could work out a deal. He was not at all happy and threatened to take me to court should I accept the school's offer and told me that I would be unable to obtain a new workpermit/visa while my case was in litigation. In case of disputes my contract states "This agreement is subject to Thai laws and any disagreements shall be submitted for adjudication at the regional civil court"

What should I do?

all the best to everyone

Larry

[raro]

Seek legal advise. AFAIK, non-competency clauses are not valid in Thailand.

[jaapfries]

N.C.C.'s are not valid under Thai Law. There's no judge in the country who would enforce such a 'stipulation' since it would effectively mean that it would "take the bread out of an individual's mouth' and that is against the Constitution.

Like he other OP stated: good advice to lay things out to a bonafide attorney and accept that new job.

The other element which is playing-out here is that a Government Schooling Dept. has obviously judged that the Company you were working for is in breach of their Agreement, hence they have decided to dis-continue the agreement. I don't see you having any problems.

By what mechanism will this Company discover that you would have taken that 'direct-offer' ? By the time they would start "proceedings"you will have already obtained a new W/P and I think it would be very doubtful if they would start such proceedings in the first place.

:jap:

[tombkk]

I'm not a lawyer but I know of a case over 10 years ago where the Thai court decided that it is unethical for a company to tell you were you cannot work after termination of the employment agreement. The details might have been a bit different, but it means that I agree with the two previous replies: Discuss with a lawyer, and I believe you will not have any problems taking that job.

Good luck, and please keep us informed!

[soundman]

A friend in the textile industry had one of those in his employment contract.

Employer made my friend redundant during the economic crisis, friend went to work for competitor, previous employer threatened to sue, friend told them to piss off, and never heard from them again.

[Sunbelt Asia]

While non-competition clauses are not illegal, in general the courts will not enforce them unless three qualifications are considered:

1) the employer has a proprietary interest it is entitled to protect;

2) if the clause is contrary to public interest; and

3) if the terms of the clause are reasonable. Reasonableness is determined by the length of restriction (in general Courts have rules no more than 2 years) and area defined, ie Bangkok.

Non compete clauses are usually used to protect the proprietary interest of the employer and to prevent former employees from disclosing proprietary information to their competitors.The courts have recognized this fact and, based on previous Supreme Court decisions that have tended to not rule non-competition clauses automatically invalid, but have determined the reasonableness of the restriction carefully and determine fairness for both employer and employee.

If the employer were to take you to court over this matter, there is no automatic guarantee that either of you would win, the courts would determine the reasonableness of the contract and its effects on both you and the employer.

[sunbelt][/sunbelt]

[stacker10]

ok but lets say I buy exemple, a restaurant can i make a clausel that says that the person I buy form can not start a new restaurant and compete with me?or close family members etc?

[Ijustwannateach]

Since the legal game is a crapshoot, I would very much doubt that your former employer would really gamble the money actually to sue you. Probably you should just take the job, though by telling your former employer it is almost certain that you'll have to start the whole work permit paperwork process over again. However, it's your risk to take.

[Abrak]

As a general rule non-compete clauses are a bit of a crap shoot.

However if your previous employer is saying that he 'will pay you not to be employed by him but to prevent someone else from employing you' he has a reasonable case. If he is simply denying you employment he rarely does.

As i say if your previous employer said 'I will pay you for the next 12 months even though you do not work for me because I do not wish you to work for anyone else' it is one case but denying you your right to employment when he is not offering you alternative employment is very weak.

[Letmeteach]

As a general rule non-compete clauses are a bit of a crap shoot.

However if your previous employer is saying that he 'will pay you not to be employed by him but to prevent someone else from employing you' he has a reasonable case. If he is simply denying you employment he rarely does.

As i say if your previous employer said 'I will pay you for the next 12 months even though you do not work for me because I do not wish you to work for anyone else' it is one case but denying you your right to employment when he is not offering you alternative employment is very weak.

My employer is offering work elsewhere but relocating my family to a new province is out of the question. Are you implying that the employer must pay me to prevent me from working at my school?

Since the legal game is a crapshoot, I would very much doubt that your former employer would really gamble the money actually to sue you. Probably you should just take the job, though by telling your former employer it is almost certain that you'll have to start the whole work permit paperwork process over again. However, it's your risk to take.

Love you nickname lol. Getting a new WP is not a problem since I live next to the border. My concern, however, is that my employer could somehow prevent me from getting a new wp/visa while my case is in litigation.

By what mechanism will this Company discover that you would have taken that 'direct-offer' ? By the time they would start "proceedings"you will have already obtained a new W/P and I think it would be very doubtful if they would start such proceedings in the first place.

:jap:

Hope for the best expect for the worse is my motto.

I know that my best option right now to consult a certified lawyer. I've been to 5 different ones and received 6 different answers. Might as well ask a fortune teller. Anyway here are some links that I have found that addressed my problem but there's no clear cut resolution.

http://www.tillekeandgibbins.com/sites/default/files/TH_LD_Non-Competition_Contract.pdf

http://www.tillekeandgibbins.com/sites/default/files/Enforceability-%20of-Non-Competition.pdf

All the best,

Larry

[raro]

As i say if your previous employer said 'I will pay you for the next 12 months even though you do not work for me because I do not wish you to work for anyone else' it is one case but denying you your right to employment when he is not offering you alternative employment is very weak.

that is indeed correct, as long as you accept money form your previous employer, he has the right to deny any other activities from your side. This is called "gardening leave". Still, you can reject his money and start somewhere else.