Nashbramhall
Learning & Teaching Fellow (retired)
Kanika Kapoor
Soft And Behavioural Skills Trainer
Abhishek.j
Business Manager - Hr / Recruitment, Head
+3 Others

Respected HRs,
I am in bit trouble that my HR is saying that I souldn\'t work with competitors. But I strongly agree that I should not copy or use any of my current company data or drawings or any other information related company in any form. I am moving from this company due major family issues which are known to management as well as my supervisor. Also requested to transfer to the location where I am suitable, but they said not possible, but to get relieve they are asking me to give in written. World is growing with competition and I also joined from their competitor and I never revealed any of my previous company data or information which they are very much aware. Please advise me how to handle this situation or suggest how to proceed.

15th June 2014 From India, Mumbai
Kindly see you appointment letter and what it says. Please also read and digest the contents at https://www.citehr.com/343871-restri...ompetitor.html and similar threads, where experts have given their views
15th June 2014 From United Kingdom
Thanks for suggestion and providing the link to know about the law. After your comments I just saw my offer letter saying that I should not join with competitor company for certain period before take responsibilities in other company, but not mentioned any time. After going through the link, I would like to bring few additional points to your notice and suggest me accordingly,

1. I am here with this company only for past 6 months and I am leaving due to serious family issues. I also requested to transfer to the location where my family is comfortable, but they said it is not possible

2. I have not gone through any special training during past six months.

3. Some where some how every one is competitor to other. But what will be solution, if I chose the different platform or different application where the current company is not there. Secondly my next company is haviing wide range of products but with different technology options. I will never get a chance to use any of my current company technologies.

Because I don't want to do anything against law, but at the same I am required to work with my skill set where I can use.

Once againt request your comments and suggestion to get relieved without any pain.

Regards

Uttu
15th June 2014 From India, Mumbai
Dear Uttu,

Don't worry and go ahead and join whichever company you want (even if it means that you are working on same platform with same technology etc.). No terms and conditions in any of documents those you signed for acceptance with company, will come in your way from accepting the new job, as long as those terms and conditions are legally vetted in any of court of law or legislatures, to ensure that they are in sync with basic ethos of our constitutions.

Remember that there is something called "Bonded labour abolition act" in our country. Remember that no "Employment agreement" between an employer and an employee which signed &/or executed on the soil of this country, is legally valid in any of court of law of this country as long as it doesn't go well along the words and spirit of above mentioned law. If your existing employers have invested in you for training etc., then they did it for the purpose of their own benefit and not for a charity. Moreover, such skillsets once acquired, can not be expected to be wiped out as per somebody else's whims and wishes. Therefore, don't worry and go ahead with your employment change plans as decided. As long as your F&F is concerned, they will have to clear it off latest within 60 days from your last working day in the organisation.

In case if they don't clear your F&F by then, then you must contact a good labour law expert advocate and start targeting the directors of the company in court of law.

Best of luck and don't cow down to the pressure of your current employers, since they can't force you to get into a bonded labour just because you have a signed a piece of paper. In fact it will be them, who will be facing the heat, in case if the case gets dragged in court of law. There have been numerous examples in past where in employers have been fined by courts for making new joining candidates sign such letters and contracts, which are in direct contradiction with the leter and spirit of above mentioned law as well as "Constitution of India".

Thanks and regards,

Abhay Mulik.


15th June 2014 From India, Bangalore
Dear Abhay Ji,
Thanks for your worlds and kind inofrmation. Can you please provide any such examples where people faced problem similar to me.
Also is it posible share any documents related to "Bonded labour abolition act". Becuase I don't want to face any problem in future from my current employer.
My problems were repeatedly informed to my boss since March 2014, now I have taken call to move, I don't have any written communication. Now my boss is saying that I never discussed.
Waiting for "Bonded labour abolition act" if available.
Thanks & Regards
uttu
15th June 2014 From India, Mumbai
Dear Uttuj,

I am in agreement with Mr Abhay. You need not worry with the threats etc given to you by your present employer. Unless it provides an avenue for change of station , as per requirement, they cannot gag you from joining another who may or may not be their competetor. The restriction on sharing of technical information pertaining to the products with the competetors will apply so long you serve the organisation concerned.

If the current employer want an undertaking from you that you will not share information pertaining to their product with the other employer, this will have only academic application and nothing else.

If your F&F is held up you can firstly, write them to clear follow by a reminder. If nothing happens please write an application to the Assistant Labour Commissioner concerned with copies of your communications sent by you to the last employer and request his intervention.If still nothing happens, pl. engage a labour law expert seeking his advice.

Sure your problems will get settled.

S.K.Johri

PS: do not bother for the Bonded Labour Abolition Act.
15th June 2014 From India, Delhi
Thank you very much for your kind views on my issue. Firstly I am trying to resolve without falling into all these controversies, since I am core technical guy and also do not waste my time in such controversies. I will also try to explain the labour laws to HR (I have down loaded from Labour Ministry Website as suggested by Mr Abhay), at the end I will meet a lawer if requred. Your views are also inline with the document.
May request someone to provide if such incidents happened.
Thanks & Regards
uttuj
15th June 2014 From India, Mumbai
#Anonymous
Uttuj,

I have in the past given some examples, here in Cite HR, of how a non compete agreement is not enforceable for employees of operating level and is restricted to those in strategic work. You may search the thread for those details. But, just to be brief, will give you a few cases.

Mark Hurd, Global CEO of Hewlett Packard joined Oracle. HP went to court to enforce the non compete agreement stating that he was privy to HP's strategy. The court dismissed HP's contention stating that Mark's knowledge of certain strategies were restricted to the role that he was handling. And the business group that he had joined in Oracle had nothing to do with the role he had in HP. And no material loss could accrue to HP and hence the non compete agreement is not enforceable.

In India, Vasant Nangia, who was to COO of Tanishq, the jewellery brand of Titan resigned and started a jewellery company by name Oyzterbay along with his senior colleagues in Tanishq. Almost 75% of the strategic team left and joined him. Titan filed a case against him and his team to enforce non compete agreement. The court dismissed the case stating that the revenue model of Tanishq was different from that of Oyzterbay and hence there would be no material loss to Tanishq. Tanishq sold their products through exclusive showrooms then. While Oyzterbay sold their products online. Hence, knowledge of Tanishq strategy made no difference.

I have given many more examples in my posts. Please go through them.

Apart from the above, the essence of most court judgements was that a person not involved in a strategic role would never be a threat even if he joins the competition and will not cause any material loss. I believe you are not working at a strategic role and do not have access to overall strategy. I believe that you are handling an operating role and the information that you could have on strategy would be limited to hearsay or a fraction of the total strategy which would be limited to your role. Hence the non compete agreement would not be enforceable.
17th June 2014 From Indonesia, Jakarta
Thanks for your infomation.
Yes, I am not in a strategic role. I execute the work as per the guidelines from Boss.Not involved in a single strategic group meeting of the company who take all strategic decissions.
Second point which I would like to bring to all you people notice is that I have not signed the Appointment letter due to this clause, still the original appointment letter with me without my signature.
But my HR is asking me now to give on a piece of paper stating the same.
Thanks & Regards
Uttuj
17th June 2014 From India, Mumbai
#Anonymous
Do not sign it now. Also in a friendly manner inform your HR that not being in a strategic role will make the signing of the non compete document not enforceable. Why don't you tell your HR to become a member of Cite HR, so that he/she could get some insight too!!!
17th June 2014 From Indonesia, Jakarta
Yes, I follow your instructions. Also let me try to talk to him to settle without any issues. Mainly my boss is not talking with me and giving any information on my relieving. I know very that he is upset with my resignation, but I don't have any option due to family.
Regards
Uttuj
17th June 2014 From India, Mumbai
Yes, but there two different people. One who wants to learn and other one just follow with jugad policies. I feel strongly that my HR falls into second category.
Anyhow I got big relief from our discussions and also will update you the outcome of my learnings through this conversation in geeting smooth exit from current employer.
Thanks & Regards
uttuj
17th June 2014 From India, Mumbai
Congrats uttuj,
Now dont call your self pure technical person. You have learned few HR tricks TOO ;)
Thr is nothing called Failure, Its Learning.
You also know now that how people and bosses react after your resignation.
Moreover as you have mentioned that period (no of days) was not mentioned between leaving and joining competitor. If any question is raised just tell them.
In Letter period was not mention so I preassumed it to be one week or 1 Day. Please show me whaere have you mentioned the period on letter given to me or signed by me. And you WON the war of words .... not court no litigation s required in case of unclear information.
ALL THE BEST !!!
18th June 2014 From India, Delhi
Hello,
Practically where else a person would join if not competitor. A simple example is that if I am a doctor resigning from a X hospital, I would definitely be joining another. I will not join a CA firm or a lawyer or retail.
Please do not worry if ur from automobile/pharmacy (examples) you are expected to have certain set of expertise in the same field only. Go ahead and apply. I'm sure if you have a valid reason and all documents and degrees in place, no one can stop you!!
Please give a proper notice and leave in a positive way..get all your experience and relieving letters.
Hope it helps!
All the best for new job!
18th June 2014 From India, Delhi
#Anonymous
Smart companies would not have such clauses. In fact, what we have done is different. While statutory gratuity of half a month is provided for, we have created our own gratuity which is in addition to the statutory gratuity. As per this scheme. Every employee who has completed 5 years of service would be entitled for one month's last drawn when he leaves the company. And this is subject to a maximum ceiling of 12 months last drawn salary. But we have a rider. If the employee resigns, then there is a waiting period of 6 months to claim this benefit. And this company gratuity will be paid only to those who do not join the competition. The company's definition of competition would be final as to who is competition.

What this has resulted in is the fact that key middle and senior people do not get lured by the competition, because they have to compensate the employee this loss of gratuity.

We do not force any one not to join the competition. Choice is theirs. If they don't join the competition for atleast 6 months, they get their non statutory gratuity. Our manpower turnover of those who have completed 5 years service has crashed to 3% from a whopping 21%. HR is able to focus more on OD and employee related work rather than recruitment.

Just thought that I must share this. Companies can do things in a positive manner rather than harassing an employee and losing the goodwill of the resigned employee and also the message will spread to prospective employees.
18th June 2014 From Nigeria
Dear All,
Still my problem was not yet resolved. I understood that my boss is creating issues ratherthan HR. After my doubt on this I started collecting his background and nature. He don\'t have any good back ground and he created similar troubles to may people. He also shared some of the critical data/vilation of NDA. Due to this one case is going on him and his previous company. I have collected all information. I have thinking to send an email to Joint commissionor of Labour, District Collector and Asst. Labour Commissionor with all evidences related to me. What you experts suggest me on this.
21st June 2014 From India, Mumbai
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