Adv. Manoj Liyonzon
Advocate & Consultant
Manager - Corporate Hr
Founder Director Sumantrana Advisory Services
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The responsibilities vested with a major chunk of employees in a firm is mostly the same in context to their reach to the firm's vulnerable resources. That is the reason why every working entity asks its employees to sign a Contract Of Employment with clauses in it about the actions that would be taken against the candidates/employees if they are found active in any unauthenticated tampering with the information and tangible resources that are confidential to the firm or if they are found allying with the competitors in any possible way.
I don't get the reason why you are being asked to formulate the 'Breach of Trust' thing. And yes, it is not called an agreement!
Make sure that the Contract Of Employment has the clauses to prevent the vulnerability. Propose amendment in the contract if need be as a whole new set of Breach of Trust would mean adding up more legalities and may frisk away the new joiners. If this could not be avoided, I propose that you make it exclusive for some designations and not for all the employees working.
I am sure my leaned fraternity on this forum would be able to throw more light on this issue.
There is no aggrement like this and now they have asked to formulate the same and you are right this will not for all the employees, only exclusively for few key positions of the company.
But, wanted to know more information like what all contents should be there, what i understand is-
1. If the candidate has joined some other competitor without serving notice period, without informing or given any fake reason
2. If he has passed any confidential information to any other competitor or anyone who can harm
Like this....please suggest what all points i can add in this.
The words and clauses in such agreement is neatly subjected to the arena in which the firm vests its resources and interests. However, the agreement should pronounce nearly all of these.
**Covenant of Nondisclosure: Employee shall not, at any time during or after the term of this Agreement, in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, corporation or other entity, or use for his/her own benefit or for the benefit of any other person, firm, corporation or other entity, and not for the benefit of the Company, any information acquired from the Company or its affiliates, without the express prior written consent of an authorized executive/officer of the Company, as more fully set forth in a certain Non-disclosure Agreement between the Company and Employee dated <date of joining>.
**Legal Relief: In the event Employee breaches, or threatens to breach any of the covenants expressed herein, the damages to the Company will be quantified by the Company which shall be final. The company may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling the Company from any other relief in either law or equity.
**Adherence to Laws: Employee agrees that in carrying out his/her duties and responsibilities under this Agreement, he/she will neither undertake nor cause, nor permit to be undertaken, any activity which either (i) is illegal under any laws, decrees, rules, or regulations in effect in either the India or any other country in which the Company has a business interest; or (ii) would have the effect of causing the Company to be in violation of any laws, decrees, rules, or regulations in effect in either the India or any other country in which the Company has a business interest.
Employee agrees to notify the Company immediately of any extortive solicitation, demand, or other request for anything of value, by or on behalf of any entity or individual, relating to the subject matter of this Agreement.
A clause for waiver should be listed too.
**Waiver of Breach: The waiver by either party hereto of any breach of the terms and conditions hereof will not be considered a modification of any provision, nor shall such a waiver act to bar the enforcement of any subsequent breach.
I hope this would help. Accept my apologies for the late reply.
'breach of trust' is generally uses in the social context. But in the organisations breach of agreement between parties exists. There will be some misconduct which should not take place in the employees, it leads to indiscipline, non-productivity, low performance, etc.,
in my next reply i will post some misconduct to be listed in standing order shape.
First u try to prepare manual for the organisation to build trust in the employees against the company to become loyal employee.
Please google it and get "Code of Conduct" which covers most of things in it. It also includes Policies as well. Policies are not detailed oriented instead it would give you a headsup.If you need more clarification please let me know.
1. Confidential Information
1.1 You shall not either during your employment (other than in the proper course of your duties and for the benefit of the Company) or after your employment has ended for any reason whatsoever:
a) use, disclose or communicate to any person any Confidential Information which you have come to know or have received or obtained at any time (before or after the date of this Agreement) by reason of or in connection with your service with the Company; or
b) copy or reproduce in any form or by or on any media or device or allow others access to or to copy or reproduce recorded information whether or not in documentary form ("Documents") containing or referring to Confidential Information.
1.2 All Documents containing or referring to Confidential Information at any time in your control or possession are and shall at all times remain the absolute property of the Company and it is your responsibility to undertake, both during employment and afterwards:
a) To exercise due care and diligence to avoid any unauthorised publication, disclosure or use of Confidential Information and any Documents containing or referring to it;
b) To acquaint yourself with specific confidentiality undertakings entered into by the Company with third parties that relate to your work, and honour these undertakings;
c) To deliver up any Confidential Information (including all copies of all Documents whether or not lawfully made or obtained) or to delete Confidential Information from any re-usable medium; and
d) To do such things and sign such documents at the expense of the Company as shall be reasonably necessary to give effect to this clause and/or to provide evidence that it has been complied with.
1.3 The restrictions in Clause 1:
a) Will not restrict you from disclosing (but only to the proper recipient) any Confidential Information which you are required to disclose by law or any order of the court or any relevant regulatory body provided that you shall (unless required by law) have given prior written notice to the Company of the requirement and of the information to be disclosed and allowed the Company an opportunity to comment on the requirement before making the disclosure; and
b) Will not apply to Confidential Information which is or which comes into the public domain otherwise than as a result of an unauthorised disclosure by you or any other person who owes the Company an obligation of confidentiality in relation to the information disclosed.
1.4 The restrictions set out in this Clause 1 are without prejudice to any other duties of confidentiality owed to the Company whether express or implied and survive the termination of employment.
1.5 For the purposes of this Clause, Confidential Information means and includes any information which may be imparted in confidence or be of a confidential nature relating to the business or prospective business or internal affairs of the Company, any Group Company, Fund Entity (as defined below) or any Investee Company and/or its clients and in particular all information relating to the marketing or sales or any products or services of the Company (including lists of customers' and suppliers' names, addresses and contacts, sales targets and statistics, market share and pricing statistics, marketing surveys, research and reports, current and future promotions, new product ranges, service and product information, contractual arrangements with customers and advertising and promotional material), know-how, trade secrets, unpublished information relating to the intellectual property of the Company, any Group Company, Fund Entity or any Investee Company and any other commercial, financial or technical information relating to the business of the Company, any Group Company, Fund Entity or any Investee Company. Such information shall not be disclosed to any person, including any member or person interested in the share capital of the Company, any Group Company, Fund Entity or any Investee Company.
1.6 For the purposes of this Appendix any reference to Investee Company means any body corporate, association, partnership or other collective investment scheme or other entity or person whether established, incorporated or resident in or in respect of which the Company, any Group Company or fund managed or advised by the Company [(“Fund Entity”)], holds investments (either directly or indirectly) including but not limited to shares, debentures, convertible loan stock, options, warrants or other securities of any loans (whether secured or unsecured).
2. Other Employment
2.1 During your employment you shall not either on your own behalf or on behalf of any person, firm or company:
a) solicit or endeavour to entice away from the Company or any Investee Company an actual employee, or discourage from being employed by the Company or any Investee Company any person who, to your knowledge, is an employee or a prospective employee of the Company or any Investee Company; or
b) employ or procure another person to employ any such person; or
c) engage in any other activity during or outside your working hours with the Company which is of such a nature as to conflict with the commercial interests of the Company.
2.2 The restrictions set out in this Clause 2 of this Appendix are without prejudice to any other fiduciary duties owed to the Company whether express or implied.
Breach of trust (BOT) is quite a relative term and hence you should fall back on your company's employee handbook wherein Do's & Don't's are stated. You can take cues from those guidelines, however you can think on the following humble inputs from my side;
1. What is negotiable and what is not - There could be few norms which are bit stretchable or company may be little lenient, e.g., once in a while, making personal calls using office phone or sometimes extended lunch hours or other similar minor things which companies usually ignore.
2. Business Information, Confidential Papers, Technical Know-how, Misc. Other info. which might damage company's agenda and objectives. These may be treated as serious BOT.
3. Indulgence into a parallel or part-time employment/occupation wherein employee is using company's data, technical know-how, tools and like-wise things may also be treated BOT.
4. The info. furnished by a new joinee while completing joining formalities and if during background verification, he/she is found to be exaggerating facts. It usually leads termination of employee or companies sometimes become lenient on minor exaggerations. Take your call.
5. Now-a-days PNWs & SNWs (professional and social networking sites) are great sources and platforms for sharing professional and personal opinions. Work-out a policy as to what can be shared or opinionated about, as a representative of the company or even personally because he/she might be damaging the image of the company directly or indirectly.
I hope considering the above you can work-out a great BOT doc. At the same time I feel valued inputs from others as already reached is also quite handy.
Prof. Abdul Qadir
6th March 2014 From India, Pune
6th March 2014 From India, Pune
Numerous good responses have been posted. I would recommend that you first clarify the intent of the management regarding the meaning of this phrase - is it Code of Ethics or is it closer to the social context of punctuality, usage of company resources for professional use, Not passing on confidential data to outsiders, competitors etc. You have enough material to show and help the person/team members to clarify the exact understanding of the phrase. It is important to clear anbiguities.
All the best
Founder Director Sumantrana Advisory Services - your HR help desk