The Case
In a recent decision by the Hong Kong Court of First Instance, an injunction against a former employee who had campaigned against dismissal was upheld. Although the employee sought to have the injunction discharged, the court disagreed.
The defendant, MM, was employed as a sales representative at GMS, a business trading in radioactive and pharmaceutical products. In March 2011, after four months working at GMS, MM was dismissed with immediate effect.
After his dismissal, MM made silent telephone calls to the company; placed unauthorised orders on behalf of GMS with the company’s suppliers; placed false orders with GMS, pretending he worked for the company’s clients; and made unjustified complaints against GMS to the regulatory authorities.
GMS applied to the court for an injunction, to prevent MM from continuing those actions. Although MM denied the allegations, the court was satisfied that the allegations were substantiated by evidence. The court granted an injunction against MM, restraining him from “assaulting, harassing, intimidating, threatening or pestering” his former employer or any of its employees, suppliers or customers.
In February 2016, MM sought to have the injunction discharged on the basis that four years had passed and, he claimed, the injunction precluded him from competing with his former employer or contacting any of GMS’s customers or suppliers. He argued that it was unfair that he be restrained indefinitely.
The court disagreed with MM’s position, and declined to discharge the injunction. While the court held that it had no jurisdiction in any event to grant the orders that MM sought, it went further to say that, even if it had jurisdiction to do so, it was not persuaded that there was a case for discharging the injunction.
The court was satisfied that the injunction did not prevent MM from competing with his former employer or having business dealings with GMS’s clients and suppliers. In fact, at the time of the trial, MM was employed as a sales representative selling medical appliances, through which it is highly likely that GMS and MM shared common clients. Rather, the injunction served only to prevent MM from assaulting, harassing, intimidating or threatening GMS. As the court pointed out, that is something he is not permitted to do in any event.
The Implications
The court’s approach to this matter demonstrates that the courts in Hong Kong will act to protect employers from disgruntled former employees where there are reasons to believe that the former employee’s acts will have a detrimental impact on the business. By that stage, however, the damage to the business might already have been done and, at the least, the business will have invested significant time and resources in dealing with the former employee.
The end of an employment period can be a difficult and stressful time for both employer and the employee. Sometimes a disgruntled former employee will take the situation personally and seek to make things difficult for the former employer and his former colleagues. In an extreme case, those actions may amount to harassment, leaving the former employer at a loss as to how to protect the business and its employees against the individual’s hostile acts.
Time is much better invested in measures to ensure that the employee’s exit can be achieved in a way that minimises potential animosity and retaliation against the company.
The Solution
To minimise the impact that dismissed employees have on the company, start by creating a culture where all employees are treated fairly and with respect by their colleagues and managers. Codes of conduct and clear policies should be adopted and promoted regularly to ensure that employees (at all levels) are fully aware of the standards of behaviour expected of them. Inappropriate behaviour that is not in line with those standards should not be tolerated.
Company policies and requirements should be enforced consistently. Care should be taken to ensure that any differences in treatment between otherwise similar cases can be justified objectively and that particular employees are not perceived as being given preferential treatment or afforded unfair concessions.
Managers and supervisors should be encouraged to call out inappropriate behaviour. Managers should see themselves as role models for others and should be encouraged to discuss concerns about workplace issues (including under-performance) with employees early, before things get out of hand.
Be alert to signs of employee dissatisfaction, and tackle problems at the first sign of trouble. Employees will not always formally voice their complaints, so it is important that line managers and supervisors identify problems, and are authorised and encouraged to take appropriate action. HR support should be available, as needed, and managers should be encouraged to use that resource.
Complaints or grievances should be handled promptly and fairly, and management should report back regularly. Employee complaints are likely to escalate if the employee perceives that his or her employer has not taken the matter seriously or has failed to handle a complaint appropriately. Grievances should be addressed whenever raised.
While it is easy to dismiss the complaints of an employee who has just been told that their services are no longer required, an employee who feels wronged, and no longer has access to internal complaint-handling mechanisms, may be more likely to take their grievance public – or, perhaps worse, take matters into their own hands – as it would seem that MM did.
Investigating the complaint may also help you to uncover and address an underlying problem in the workplace.
Also be aware that a departing employee may try to take confidential information with them. Confidentiality obligations should be clearly stated in employment contracts and employees should be reminded of their obligations when the relationship comes to an end.
Email monitoring and IT audits (of data transfers to external storage devices and printing logs, for example) can help employers identify unauthorised attempts to transfer confidential information. However, care must be taken to ensure that such processes comply with applicable personal data protection legislation and that employees are made aware of any workplace monitoring that might be conducted.
The business will also need to consider how best to communicate the employee’s departure (both internally and externally, where appropriate) and how emails or other business communications addressed to the employee will be dealt with, including the content of any automated reply.
This article appeared in the Classified Post print edition as Stop dismissed employees from doing damage.
