The court dismissed the appeal. However, the Court of Appeal reinstated the appeal and agreed with the applicant that, in her case, the agreement may have been intended only to stifle competition and that it would have been unduly distressing in significantly reducing its employment opportunities and hindering its viability. Rarely does a person work in the course of his or her career for a single employer. It is therefore very likely that at some point you will come across an employer who will ask you to sign a competition agreement. Faced with this reality, we are often asked: “Can I refuse to sign a non-competition clause?” Unfortunately, if you decide not to sign, a non-competitor a future employer may refuse to hire you. It is equally true that an existing employer can fire you because it refuses to sign a non-compete clause. This is because employers may require workers to sign non-competitive agreements as a condition of employment or continuous distribution. A non-compete agreement is not unreasonable for a worker if the non-competition agreement is appropriate in the geographical area, purpose and duration. Courts will also be less likely to find unreasonable harshness for the worker if the worker leaves his job, unlike the employer who resigns. This factor is not determinative in deciding definitively whether the non-competition agreement should be applied, but it is very relevant.
The standards for determining whether a non-compete agreement or a restrictive competition pact is appropriate in the current circumstances are: 1) it protects the legitimate interests of the employer; 2) there are unreasonable difficulties for individuals; and 3) it causes injury to the public. However, if the staff member does not have access to trade secrets or other confidential or protected information, the agreement cannot be enforced regardless of its terms. In these circumstances, the agreement is considered non-legitimate and considered an illegal and unenforceable trade restriction. A non-compete agreement that amounts to the sale of a business is given more leeway than restrictive agreements that enter into an employment contract.