BUSINESS LAW – CO5119

James Cook University Australia
STUDENT ID:13110323
MOB: +65-90152899 abey.171192@gmal.com/abey.abraham@my.jcu.edu.au 12/5/2014
ABEY ABRAHAM
CASE: BARKLAY SHARED SERVICES NOIDA (UP) Vs TONY WILLIAM. 17 June 2012

BUSINESS LAW ASSIGNMENT

Table of Contents BUSINESS LAW ASSIGNMENT 1 CASE: BARKLAY SHARED SERVICES NOIDA (UP) Vs TONY WILLIAM. 17 June 2012 1 1. FACTS 3 2. LAW 4 2.1 NON COMPETE CLAUSE (DETAILED) 4 2.1.1.PERIODIC 4 2.1.2. GEOGRAPHICAL 4 2.2 MISREPRESENTATION 4 3. ISSUES 4 3.1. 4 3.2. 4 3.3. 4 4. PRINCIPAL 5 4.1 Case: Business Intelligence Services, Inc. v. Carole Hudson 5 4.1.1Facts 5 4.1.2 Issue 5 4.1.3 Holding 5 4.1.4 Reasoning 5 4.2 Case: Gulf Industries, Inc. v. Boylan 5 5. Application 6 5.1 6 5.2. 6 5.2.1 6 5.2.2 6 5.2.3 6 5.2.4 6 6. Conclusion: 7 7. References: 7

1. FACTS
Tony William is an employee of Barklay shared services (BSS) Noida, Uttar Pradesh. In 7 June 2012, Tony received an offer letter from Amecs Services (AMS) Noida (UP) a competitor of Barklay shared services. There was opening at Amecs Services for the post of a Team Leader and perquisites involved free transportation and a higher incentive scheme. However, the offer for the post of the Team Leader was only vacant till the period of August 2012. Both Barklay Shared Services and Amecs Services were into BPO sector and were market rivals since a decade. In order to avoid security breach of their personal business documents Barklay Shared Services had made amends in their employee contract in August 2006 of a non-competition clause because one fourth of the employees at Amecs were from Barklay shared services. Tony had been an employee at Barklay Shared Services from near over a year. He started working there in the year May 2011 and had a record of being a very dedicated employee and was held the star performer many times during his tenure in the organisation. Seeking better career opportunities Tony decided to make a move to Amecs as it was offering a better pay and more perks involving free transport from home to the office which his current organisation did not provide. Keeping all these perks in mind Tony applied for a resignation. So Barklay Shared Services devised an injunction to retain Tony in the organisation. Tony had signed the contact when he had joined the organisation but in due course was unable to find the contract copy and the offer letter. Unable to recover the offer letter and the contract he asked for the copy of the contract by his superior as it was required for both his resignation and for the new joining at Amecs Services. The secretary of the president of the organisation reached Tony and provided him the copy of the contract which he said he had retyped. On 10 June Tony signed the contract without completely reading the contract. The contract had a non-compete clause which prohibits Tony from working with any Barklay shared services rival for a period of 12 months after the termination of his employment.
On 27th June 2012, Tony applied for the resignation. BSS reminded him of the non-compete clause, but Tony expressed his view that he is not aware of any such clause when he signed the contract in May 2011. In tonys opinion BSS is trying to retain him by framing false clauses in the offer letter and contract signed by him after the commencing his employment. Whereas BSS argues that there a breach in the non compete clause. However, was no evidence that Tony would be unable to gain employment for the next twelve months?

PLAINTIFF: MR. TONY WILLIAM
DEFENDENT: BARKLAY SHARED SERVICES
2. LAW
2.1 NON COMPETE CLAUSE (DETAILED)
As per business law a Non-Competition clause restrict individuals and organizations from providing services or engaging in businesses activities in certain markets and geographies boundaries for a limited period of time. The clause protects businesses and their interests from the potential that knowledge gained by an employee or business will be used in the future to compete against the business by their rivals in the same industry. However, the enforceability of non-compete clauses varies from state to state.
2.1.1.PERIODIC
As per the Non Compete clause the Employee shall not, either during his or her employment or for a period of twelve (12) months following the termination of his or her employment for any reason including resignation, without the prior written consent of the Company, carry on, or be engaged in, or be concerned with, or interested in, or employed by, any person engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the Company’s business.
2.1.2. GEOGRAPHICAL
At the time of any such termination the employee shall not engage in any organisation and or employee or and employees within a radius of seventy-five (75) kilometres from any Company or Affiliated Corporation office where the Employee was employed during the last twelve (12) months of his or her employment.
2.2 MISREPRESENTATION
Misrepresentation is a TORT, or a civil wrong. This means that a misrepresentation can create civil liability if it results in a pecuniary loss.
3. ISSUES
There are three main issues in this case. The issue in this case are mentioned below: 3.1. First issue The main focus of this case is whether the clause of the non-competition was applicable or not. It is the prime concern as it effects Tony situation the most as the party is switching the occupation. Tony wants to work in Amec Services (AMS), hence the motive of resignation.
3.2. Second issue Tony or the plaintiff claims that the offer and contract made whilst joining the organisation didn’t specify the non-competition clause and there has been a case of misrepresentation. There is also a case that it was misrepresented as the contract copy was retyped.
3.3.Third issue Since the new contract was presented after Tony commenced employment with BSS, there is a question of whether there should be a consideration regarding the matter?
3.4. Fourth issue: If a consideration if in case required and decided by the court of law what it should be and too what extent is viable and reasonable.

4. PRINCIPAL
4.1 Case: Business Intelligence Services, Inc. v. Carole Hudson
4.1.1Facts: Carole Hudson was an employee of Business Intelligence Services (BIS). In August of 1983, Ms. Hudson received an employment offer from Management Technologies, Inc. (MTI), a competing firm. About one third of MTI's employees were former employees of BIS. Business Intelligence Services (BIS) sought an injunction to prevent Ms. Hudson from working for MTI. Ms. Hudson believed that she had signed an employment contract with BIS in June 1983, but later could not produce a copy of it. During the summer of 1983, Ms. Hudson had received promotion at BIS. On September 9, 1983, prior to Ms. Hudson's resignation from BIS, Ms. Hudson's supervisor at BIS told her that there was no employment contraction file for her and that such a contract was required. The secretary of BIS's president approached Ms. Hudson with a contract that she said she had retyped. Without reading the contract, Ms. Hudson signed it. The contract had a non compete clause in it prohibiting Ms. Hudson from doing business with any of BIS's clients for a period 12 months after termination of her employment. On December 29, 1983, Ms. Hudson resigned from BIS. BIS noted the noncompetition clause, and Ms. Hudson expressed her view that the contract that she had signed in June had no such clause. There was no evidence that Ms. Hudson would be unable to gain employment for the 12 month non- compete duration.
4.1.2 Issue: The issue in this case is whether the non­competition clause was enforceable. First, it may have been misrepresented since it had been presented to Ms. Hudson as a retyped version of the original. Second, since the new contract was presented after the commencement of employment with BIS, there is a question of whether consideration was given.
4.1.3 Holding: The non­competition clause is enforceable, and its one year duration is reasonable.
4.1.4 Reasoning: In the presentation of the employment contract on September 9, while it may have been misrepresented, there is no evidence of intention to deceive. When one signs something, one is bound by its terms so one should know what is in it. While continued employment does not constitute valid consideration, Ms. Hudson's promotion does. Furthermore, BIS's specific knowledge of clients' systems is protectable as a trade secret. The remedy in this case was an equitable remedy since BIS would suffer irreparable harm and actual damages would be difficult to quantify. The court issued a preliminary injunction to prevent Ms. Hudson from commencing employment at MTI.
4.2 Case: Gulf Industries, Inc. v. Boylan
After a common understanding and reading of the employment agreement, we know that its employment period was not extended beyond the authentic termination date. While Mr. Boylan continued to operate for Gulf industries after the coming early July 31, 2010, he no long worked underneath the terms of the job agreement and was the at-will employee. When the employment period underneath the employment agreement terminated about July 31, 2010, Mr. Boylan then became susceptible to its non-compete clause for 2 years. The effective amount of the non-compete clause ended on July 31, 2012.
The court rejected the employer’s argument which the agreement had been prolonged when Boylan initialled the exhibit that listed the parishes the spot that the non-compete clause would be efficient on March 8, 2011. The court noted that Boylan testified on the preliminary injunction hearing that his initialling of the exhibit was because it has not been presented to him as soon as he originally signed the agreement in 2009 but that he was not agreeing to extend the terms of the employment period with the initials.
The case highlights the dangers of incorporating a non-compete agreement using a formal employment contract using a defined term.
5. Application
Following application of law can be made in this case:
5.1. The non­competition clause is enforceable, and its one year duration is reasonable:
In the presentation of Tony’s employment contract on June 10, and when one signs something, one is bound by its terms so one should know what is in it.
While continued with the employment, hence does not constitute valid consideration. As derived from the case of Business Intelligence Services, Inc. v. Carole Hudson BSS’s specific knowledge of clients' systems is protectable as one of the secret. Any breach in the contract could lead to a major loss in the credibility of the organisation. Thus the immediate the remedy in this case was an equitable consideration. Since it was understood that the plaintiff BSS might have a chance of suffering irreparable harm and actual damages that would eventually follow it shall be difficult to quantify or would be hard to estimate a monetary value of the loss that the defendant could possibly incure. The court issued a preliminary injunction to prevent Ms. Hudson from commencing employment at MTI.
5.2. There is no case of misrepresentation in this case because:
5.2.1 No False statement. No false statement made to the plaintiff by the defendant, it was on request of the plaintiff the defendent provided the new contract
5.2.2 No intentional disregard of false or possibly false information: amendments regarding the non-compete was made in the year 2006 therefore no false information was provided either by the defendant to the plaintiff
5.2.3 Falsely entering into a contract: the plaintiff demanded the new the contract as the plaintiff was unable to recover his contract signed at the time of his commencement 5.2.4 Misrepresentation is providing details which are incorrect, here in this scenario there was no real violation of facts, it was mainly because of the negligence of the party. Had Mr. Tony read through the contract he would have been aware of the clauses thus mentioned in the contract. As we see in the case of Gulf Industries, Inc. v. Boylan The court noted that Boylan testified on the preliminary injunction hearing that his initialling of the exhibit was because it has not been presented to him as soon as he originally signed the agreement in 2009 but that he was not agreeing to extend the terms of the employment period with the initials. As it is due to his negligence that he didn’t read well through during the signing the contract as it should be his responsibility Henceforth no misrepresentation was filed on behalf of BSS can be taken into consideration.
6. Conclusion:
The court when going through the case issued a preliminary injunction to prevent the plaintiff from commencing employment at Amecs Services and the defendant won and no charges were filed against them as seen in the case with Business Intelligence Services, Inc. v. Carole Hudson
Further in my opinion the plaintiff should have continued with the organisation, immediate resignation is not formidable; at least the plaintiff should maintain the dignity of the organisation so far worked for and provide prior information before leaving or resigning his duties from the organisation. And a minimum of a notice period must be served by the plaintiff.
Moreover, if in case the plaintiff does not intent to stay a formidable amount of compensation should be made by the plaintiff towards the defendant to cover the loss the organisation will in cure during the phase the plaintiff is absent in the organisation in this case Tony before he leaves the organisation. Such compensation must be agreed upon in a manner both convenient to the plaintiff and the defendant.
7. References: * (2014, december 1). Retrieved decembe 1, 2014, from /www.legalmatch.com: http://www.legalmatch.com/law-library/article/business.html * aw/empl/ 5/6. (n.d.). Retrieved from www.quickmba.com: http://www.quickmba.com/law/empl/ 5/6 * parker, P. g. (2011). unnderstanding busines law 4th edition. 2009. * thelawdictionary.org. (2014, december 2). Retrieved 12 2, 2014, from http://thelawdictionary.org/fraudulent-misrepresentation * ww.legalmatch.com. (2014, december 3). Retrieved 12 1, 2014, from ww.legalmatch.com: ww.legalmatch.com/law-library/article/business.htm * www.quintcareers.com. (2014, 12 1). Retrieved 12 1, 2014, from quintcareers: www.quintcareers.com
(2014, december 1). Retrieved decembe 1, 2014, from /www.legalmatch.com: http://www.legalmatch.com/law-library/article/business.html * aw/empl/ 5/6. (n.d.). Retrieved from www.quickmba.com: http://www.quickmba.com/law/empl/ 5/6 * thelawdictionary.org. (2014, december 2). Retrieved 12 2, 2014, from http://thelawdictionary.org/fraudulent-misrepresentation * ww.legalmatch.com. (2014, december 3). Retrieved 12 1, 2014, from ww.legalmatch.com: ww.legalmatch.com/law-library/article/business.htm * www.quintcareers.com. (2014, 12 1). Retrieved 12 1, 2014, from quintcareers: www.quintcareers.com