Departing Employees Ordered to Pay Former Employer over $130000 for Soliciting Employer’s Clients
In a recent case, a judge ordered two departing employees to pay an employer $132,581 plus prejudgment interest plus legal fees for breach of contract and breach of fiduciary duties.
The Facts
The two employees resigned and immediately started soliciting the employer’s clients. In fact, one of the employees started soliciting clients before he resigned.
The Decision
The court concluded that a non-solicitation clause which prohibited an employee from soliciting the employer’s clients for 6 months was enforceable.
The court also concluded that one of the employee’s, who was a relatively junior salesperson, had a common law duty not to solicit the employer’s clients while employed. The other employee who was a key salesperson had a fiduciary duty not to solicit the employer’s customers for a reasonable period of time.
How Damages Were Calculated
As far as calculating damages is concerned, the court quoted with approval from another case as follows:
Compensation for breach of fiduciary duty has a restitutionary objective. In a case such as this there are two different approaches to compensation:
(i) disgorging the benefits wrongfully acquired by the defendant, or
(ii) restoring the plaintiff to the position it would have been in if the breach had not occurred.
The first approach focuses on the defendant’s gain; the second on the plaintiff’s loss. The plaintiff may elect which approach to compensation they are seeking.
In this case, the court looked at the employer’s lost revenue and multiplied by 25% which was the employer’s gross margin.
Lessons to be Learned
- Require all salespersons to sign an employment contract with an enforceable non-solicitation clause.
- Remind all departing employees of their contractual obligations.
- Keep track of all revenues that are lost because a departing employee has solicited your customers and if it is a material amount then consult an employment lawyer to discuss a potential legal action.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on Ontario’s employment laws. If you have any questions, you can contact him at 416-317-9894 or at [email protected]
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
Recent Posts
(Yet) Another Termination Clause Bites the Dust
An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted.
read moreDuty of Good Faith: Do Employers Have a Duty to Disclose Material Facts to Employees Who are Making Employment Related Decisions?
The Facts Mr. Jonasson, a 55 year old engineer with 22 years’ service with Nexen Energy was thinking about either retiring or taking a leave of absence. He decided to request a six month leave of absence. The employer agreed to his leave request if he entered into the...
read moreEmployment Contracts: Unenforceable Termination Clause Costs Employer over $ 400 000
A recent case underscores the importance of including a properly drafted termination clause in your organization’s employment contract. The Facts In March 2010, CIGI hired Mark Menard, a chartered accountant, as Senior Director of Finance. He was responsible for the...
read more