Page 32 - GBC Spring 2021 English

months of employment. However, a well-drafted contract can provide an owner/manager with the right to terminate without notice or termi- nation pay during the initial months of the employment relationship.
NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE CLAUSES
When an employee leaves their employment with a golf course, the employee is generally free to compete against that golf course. Not only can a golf pro open a new business right next door to their former place of employment, but the golf pro can also attempt to develop their business by contacting the clients, employees, and suppliers of their former golf course. Employers may be able to reduce that risk with contracts that contain a “non-disclosure” clause and potentially a “non- solicitation” or “non-competition” clause.
A non-competition clause typically prohibits a former employee from working in a specific industry, for a specific period of time, and in a specific geographic territory. For example, a non-competition clause might attempt to prevent a golf pro from working as a golf pro within a radius of 15 kilometres of the former workplace, for a period of two years. However, courts rarely enforce non-competition clauses given that non-competition clauses can significantly impact a person’s ability to earn a living. In addition, courts often award employees lengthier notice entitlements if there is a non-competition clause in the employees’ employment contract. As a result, non-competition clauses are rarely included in employment contracts unless there are exceptional circum- stances.
In contrast with a non-competition clause, a non-solicitation clause is less restrictive and typically prohibits a former employee from actively soliciting individuals associated with the former golf course, such as clients, employees, or suppliers. The prohibition must be limited to solic- itation in a geographic territory or to solicitation of individuals who the former employee directly interacted with during their employment. In addition, the prohibition must apply for a limited period of time, which is typically a period of two years or less.
A non-disclosure clause prohibits employees from disclosing or inap- propriately using their employer’s confidential information. As previ- ously discussed, non-competition and non-solicitation clauses only apply for a limited period of time. They are also limited to a specific geographic area or to the solicitation of specific individuals. In contrast,
“A common misconception is that employers have an inherent right to lay off employees when the need arises.“
there is no need to limit non-disclo- sure clauses to specific geographic territories or specific time periods.
As a result, a non-disclosure clause can provide an employer with additional protection where a former employee is lawfully competing with the employer, either because a court has refused to enforce the employee’s non- competition clause, or because the clause is not broad enough to prohibit the former employee’s actions.
PROTECTING YOUR INTERESTS
While there are many pitfalls that can expose owners/managers to liability in the recruitment process, owners/managers can minimize potential liabilities by adopting a proactive approach and imple- menting effective hiring practices. Owners/managers also have the opportunity to protect their interests by ensuring that job candi- dates are presented with well-draft- ed employment contracts. With that in mind, owners/managers are encouraged to revisit their hiring practices and employment contracts as the start of the next golf season approaches.
Please note, this article is intended for informational purposes only and is not intended to and should not be relied upon as legal advice.
Golf Business Canada
32
Golf Business Canada