However, it should be noted that such a covenant should be enforceable, without making the person unemployable. The clauses, therefore, should not be too tight to adversely affect the career of the said person (Deakin and Morris 2009). A restriction of six months to one year is considered feasibly enforceable. The restriction should also not be too general for example restricting working for any competitor within the whole country (Brodie 2012). In the case of Tracey, the restrictive clause is 12 months, meaning that it is enforceable, and once she has signed it remains binding even after she has terminated her contract.
What she should, therefore, be keen is if she is willing to abide by it. She should also be aware that she will be committing into not working for any other legal firm for the stipulated period. The covenant, however, seems broad in terms of the geographical area within which the binding is valid. Having not specified the region within which she cannot work, the interpretation is that as a lawyer, she may be forced not to practice in any other firm for the 12 months after termination.
It is important that she keenly considers that. She, however, has an option of negotiating this clause with the employer before she commits. Such a negotiated covenant will accord her an opportunity to state her preference and the employer is more likely ro come to a more neutral position (Walker 2008)b) In this covenant, the clause restricts Tracey from having any contact with any client or potential client for a period of 12 months after the termination of her contract with Dunstan, Usher and Lowe LLP.
The clause is restrictive to not only working for a competitor but to also having no contacts with any client or prospective client. Whereas the clause could be enforceable in law, it appears unreasonable. In an employment contract, the employee has a duty to obey reasonable lawful orders (Rose 2005). It implies that such an order must meet these two criteria of being lawful and reasonable (Painter and Holmes 2008). In a case of Fernie v Weston District Council, the employee was ordered to weed a pod, and he argued that he would only weed around the edges since it appeared dangerous to do so inside.
The employee won the case since the ruling was that the order appeared unreasonable, given the circumstances. The particular covenant, in this case, may fail the test of being reasonable
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