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労働契約の存続中は、就業規則や労働契約上の特約の存否にかかわらず、信義則に基づいて労働者は競業避止義務を負います。したがって、会社に在職中の労働者が、在職中の会社と取引先などが競合する取引をしたり、在職中の会社と取引先などが競合する会社に就業したり、その役員となったりすることは、競業避止義務違反となる可能性が高いと考えられます。
これに対し、労働契約の終了後は、上記のような信義則に基づく競業避止義務は消滅し、就業規則や労働契約等の特別の定めがある場合に限り、これらの約定に基づいて競業避止義務を負います。
そして、競業行為の制限は、使用者の営業の利益の保護と退職労働者の職業選択の自由の保護とのバランシングが必要となるため、裁判例では、①競業制限の期間、②場所的範囲、③制限対象となる職種の範囲、④代償の有無等を基準に、ア)使用者の利益(企業秘密の保護)、イ)退職労働者の不利益(転職、再就職の制約)、ウ)社会的利害(競争制限による一般消費者への不利益)という視点で慎重に検討され、競業の制限が合理的範囲を超え、退職労働者の職業選択の自由等を不当に拘束する場合、その制限は、公序良俗に違反し無効と判断されることとなります。
使用者の営業の利益の保護と退職労働者の職業選択の自由の保護とのバランシングが適切に調整された競業避止義務の制約であれば、会社側・労働者側ともに、不要な争いを避けることができ、両者の不要な関係悪化を防ぐこともできます。
もっとも、使用者の営業の利益の保護と退職労働者の職業選択の自由の保護とのバランシングの適正を図ることは、極めて難しいのが実際です。
従業員の退職に伴う競業避止義務に関する問題は、お早めに専門家である弁護士にご相談されることをお勧めいたします。
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