Ming-Yee Shiu considers the circumstances in which fiduciary duties may be imposed upon employees
Claims of breach of fiduciary duty have become increasingly popular in relation to various forms of misconduct by employees, such as misappropriation of company property, unlawful competition, diverting opportunities, and receiving bribes. Although there may be corresponding claims in contract and tort, the onerous nature of fiduciary duties may widen the scope of potential liability.
Furthermore, there are a number of effective remedies for breach of fiduciary duty in addition to compensation in damages. These include the gain-based remedy of an account of profits and, potentially, proprietary remedies. The existence of a proprietary remedy can assist a claimant not only at the final stages of an action but also in seeking interim remedies such as asset preservation orders.
While trustees and company directors are known to be fiduciaries, it is for the employer to establish the basis of any fiduciary relationship and the nature and scope of any fiduciary duties owed by its employees. Accordingly, an understanding
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