Standing up to a bully

By October 4, 2018 Blog

Courts have long said that there is a power imbalance in the employee-employer relationship.  Unfortunately, some employers try to take advantage of this as happened in a recent case we handled.

Our client, an employee, resigned from a position with a global full-service consulting firm in the pharmaceutical industry.  At the time he resigned, he had been placed by the employer at a large company.   When our client started working for a new employer, he was placed at a number of companies and then 3 months after resigning,  was placed by his new employer in the same large company his former employer had placed him in.

His former employer did not like that and took a very aggressive stance:  Our client was sued for alleged misuse of confidential information and alleged breaches of non-solicitation and non-competition provisions in his employment agreement.  His former employer served him with a motion on a Friday afternoon, 1 week before the scheduled motion date seeking an injunction stopping him from working at his new job.  This was done without seeking our firm’s availability for the scheduled motion, something normally done.

We looked at the case and it seemed to us that the employer was looking to force our client to ask for an adjournment of the motion so the employer could ask for an injunction in the interim.   This would mean our client would not be able to work at his new job until the motion was heard which could be months down the road.  It also seemed to us that the employer’s motion was weak and would not succeed.

Instead of succumbing to the pressure of the tight timeline, we scrambled into action by drafting responding affidavit materials and the other materials needed for the motion and delivered the papers to the employer’s lawyer.  Now the tables were turned!  The employer was now forced to itself ask the Court for an adjournment, telling the Court that it wanted to cross-examine our client before the motion proceeded.  The Court denied this adjournment request finding that the employer’s request to cross-examine was really a “fishing expedition” to unearth evidence to help its case because it had no evidence itself.

It turns out we were right about the employer’s motion.  The motion proceeded and was dismissed.  The Court found that the employer placed no evidence before the Court to show any misuse of confidential information or solicitation by our client and that the non-competition provision was an “unreasonable restraint on the employment mobility of entry level workers”.

The Court also found that the employer had not established irreparable harm as its “evidence” was nothing more than “bald, unsubstantiated allegations”.  Lastly, the Court found that the balance of convenience strongly favoured our client because the employer had put forward no evidence of any impropriety by our client.

The Court not only dismissed the employers motion, but also awarded our client a significant quantum of costs, finding that our firm was justified in scrambling into action and that any overlap in work by our firm was as a result of the urgency of the motion manufactured by the employer.

David Shiller, Gil Fischler and Mohamed Mohamed all worked on the motion.

The successful result is one of the most satisfying results in our firm’s 24 year history.