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Context: I currently live in India and working remotely as a Software Engineer for a Dutch company since August 2018. I have got a residence permit for the Netherlands starting next month and was about to migrate for the company. During the last 4 months, I have been working over 60 hours a week and completed the must-have features of the product.

I had signed an employment contract that states:

Parties are free to terminate this agreement prematurely taking into account the statutory notice periods. Notice of termination will only be valid if it is in writing.

  1. The term of notice of termination to be observed by the Employer is, when the employment agreement on the effective termination date has lasted: (a) shorter than five years: one month; (b) five years or longer, but shorter than ten years: two months; (c) ten years or longer, but shorter than fifteen years: three months; (d) fifteen years or longer: four months.

  2. The term of notice of termination to be observed by the Employee is one month.

Further, Article 15 - Governing law and jurisdiction

  1. This agreement, and all non-contractual rights and obligations arising thereto, are governed by and will be interpreted in accordance with the laws of The Netherlands.

  2. All disputes related to this agreement, or the agreements concluded in the performance of or in connection with this agreement, will be submitted exclusively to the competent court of Midden-Nederland.

On the 3rd of December 2018, I have been verbally laid off and had been given a two months notice period to find a new job until 31st January 2019. Recently, my employer sent me an NDA with the clause below. He has provided me with no incentive to sign the NDA but he will end my work straight away without any notice period. This would hamper my chances of getting another job in the same field(AI & Software) as the company has a very generic business description and a variety of products.

Non-Competition

Unless with the prior written consent of the Company (which shall not be withheld unreasonably), the Partner shall, for a period of 1 year following the last disclosure to it of Confidential Information not be directly or indirectly involved in any activity (aimed at) competing with the Business.

What are my options here? Can I take legal action if he decides to let me go without notice if I refuse to sign the NDA? Further, no written notice has been given yet does that mean it is still not valid?

closed as off-topic by Nij, A. K., jimsug Dec 24 '18 at 1:56

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  • The clause re exclusive jurisdiction of Dutch courts in unenforceable- no court anywhere will accept that their jurisdiction can be limited by contract. You are in India so Indian courts have jurisdiction and will hear the case using Dutch law and any and all Indian law that cannot be excluded by contract. – Dale M Dec 16 '18 at 1:17
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This is not an NDA (non-disclosure agreement), it is a non-compete agreement. An NDA would tell you that you cannot disclose anything you did or saw at your old employer's place. A non-compete agreement is what you have here, an agreement that limits your ability to get work.

If what you say is correct, then your employer is not exactly the brightest. You stay that you haven't been given a written notice, and your contract says that a "Notice of termination will only be valid if it is given in writing". So you haven't been given valid notice.

There is no reason why you would sign the non-compete agreement. If they plan to fire you without notice if you don't agree, they have a problem: Your contract doesn't allow them to do that. And they have apparently not given any written notice yet.

So what they can do is as soon as they decide that you are not signing, they can give you one month written notice.

  • Further, I already asked my employer to remove the Non-compete clause and I would readily sign the NDA but he refused. – user3841609 Dec 16 '18 at 15:47
  • The rest of the document is in regards to not disclosing anything I saw in the employer's place, only this clause deals with the Non-compete that shouldn't have been included in the NDA in the first place. So my best bet would be to reject signing the NDA and not getting into any negotiations? Further, I don't have any incentive of signing this as I already have been let go. – user3841609 Dec 16 '18 at 15:53
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For a general background on Dutch contract law see here. This link is particularly relevant to various aspects of your situation.

Can I take legal action if he decides to let me go without notice if I refuse to sign the NDA?

Yes, as that would constitute breach of contract. Unless you failed the [contract law] covenant of good faith and fair dealing, the fact that the employer is the one deciding to terminate the employment relationship further weakens his "merits" as to constraining your career prospects elsewhere.

Although the non-compete or NDA clause is not really part of the contract you accepted/signed, you might want to make it clear to the employer that you reject the clause(s) he belatedly is trying to impose. See the 2nd-to-last paragraph of this page.

no written notice has been given yet does that mean it is still not valid?

A priori, yes, anything short of written notice is invalid. However, it is noteworthy that

Dutch law provides that null legal acts may later be validated. For example if the nullity resulted from the non-fulfilment of a legal conditions and these conditions are later fulfilled (article 3:58 DCC).

The validation of a legal act under Dutch law has retroactive effect.

This suggests the possibility that the employer may cure his omission by giving you a written notice without having to reset the "countdown to termination".

  • Interestingly, it seems they gave a verbal notice of two months, two weeks ago, while the contract required them only to give one month written notice. So in this particular case they can actually give a shorter notice. – gnasher729 Dec 16 '18 at 15:26
  • I'm a bit confused on the first short rule and last shot etc. Does that only apply if I get into contract negotiations or if I just reject signing anything? That is true, the reason for the two-month notice was due to the fact that most companies will be on holiday during Christmas and it would be difficult for me to find a new job during this time. So he wanted to give me adequate time to find a new job. But if I refuse to sign this my notice period would be shorter. – user3841609 Dec 16 '18 at 15:38
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In addition to the other answers, the NDA (which is really a non-compete agreement) is written in such a way that it is unenforceable. This is because it is unlimited geographically, unlimited in terms of work, poorly defined (when is consent withheld "unreasonably"?), violation impossible to prove (how to prove "aimed at"?), and employees would only ever agree to sign under duress due to the lack of explicit compensation.

While you could sign to avoid confrontation now, this would likely only delay the problem until the point when they try to enforce the non-compete. However, a delay may be exactly what you need because you need their references and recommendations looking for a new job.

If you can at all afford it, I'd recommend to consult a dutch lawyer about the specific situation, if only because that will give you the confidence needed to deal with their unjustified demands effectively.

  • There is nothing poorly defined about "such consent not to be unreasonably withheld". It is a common legal phrasing, and means that the party seeking to obtain consent can go to court if the (non-)consenting party is refusing out of spite (rather than for a legitimate business reason). I am similarly suspicious about "aimed at". In addition whether a non-compete clause with unlimited geographic scope is enforceable is jurisdiction specific. – Martin Bonner Aug 7 at 10:26

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