A non-competition clause is a clause in an employment agreement, in which an employee, after termination of his employment, will be restricted for a certain amount of time to be working in a certain way.

In general, an employee, who is not bound by a non-competition clause, is free to work for any competitor of its former employer.

Under Netherlands Antilles employment law a non-competition clause is void. This however does not impede the employer to claim damages due to unfair competition. We speak of unfair competition when the employee appears as a competitor of the employer and additionally unlawfully uses his employment history to compete against his former employer.

According to applicable case law, only exceptional additional circumstances may lead to the judgment that an employee is guilty of unfair competition towards his former employer. In this respect relevant circumstances are (among other things): the acquisitive character of the employee’s actions and in the withholding of client files by the employee. Without a  legally binding non-competition clause in an employment agreement, the mere fact that the employee is carrying out his acquired professional knowledge elsewhere is not to be considered as an unlawful act towards the former employer. After all, this would make it almost impossible for an employee to change positions externally.

For more information on this subject or on other employment law related matters you can contact Mrs. Avontuur, Llm, senior associate with our firm.