Key Points:
When attempting to restrain a former employee from
breaching the terms of a non-solicitation clause you must ascertain
what the clause means.
Post-employment restraint litigation is becoming increasingly
common. Post-employment non-solicitation restraints are seized upon
by employers distraught at seeing former employees solicit the
business of their valued clients.
However, if a restrictive covenant prohibits solicitation, does
that mean a former employee can simply sit back and wait until a
client approaches him or her? The 1998 New South Wales Court of
Appeal decision in Barrett & Ors v Ecco Personnel Pty Ltd
[1998] NSWSC 545 was the decision which seemed to indicate
"no". The very recent decision of Planet Fitness Pty Ltd
v Brooke Dunlop & Ors [2012] NSWSC 1425 considered this same
issue and whilst at first blush appears to possibly be inconsistent
with Barrett, this is not necessarily so. This article considers a
number of decisions (several
