I am the state manager of financial services company specialising…

Yes I got it, thank you.

The post-employment restraint in your contract kicks in on termination of your employment. It does not specify that it has to be termination by your employer, so if you resign as a result of the unrealistic situation you are faced with, it will not change the application of the restraint.

However, there are other issues for your employer with enforcement of this restraint.

First, this contract was entered into in 2009 when you were employed in the position of Financial Advisor/Investment Advisor and you are now employed as State Manager. If this change in your position was significant, you would have a strong argument that the contract that you entered into for your previous position no longer applies. That is, that contract applied to your previous position, so when your position changed, your old contract fell away therefore does not apply. If this is the case, the post-employment restraint will also not apply. (This would not be the case if you signed anything on promotion which affirmed the terms of your previous contract.)

Second, the restraint is very widely drafted and therefore will be very difficult for your employer to enforce. To be enforceable, the terms of the restraint would need to be reasonable for the protection of your employer's business. There are a couple of stand out parts of this clause that are likely to be unreasonable:

- The restraint prevents you from engaging in competition anywhere in Australia when you were employed as a state manager and presumably only involved in servicing clients in WA. The Australia-wide aspect of the restraint means it will apply to territories and client outside of your area, and therefore likely to be unreasonable.

- The non-solicitation clause prevents you from dealing with any person who was a client of Prime during your employment. This would include clients that you had nothing to do with, and therefore would be unreasonable for this reason.

It is also doubtful whether a one year restraint would be reasonable in an industry like this.

Therefore, your employer will face significant issues with enforcing this restraint against you. These issues place you in a strong position and you could negotiate an exit with them with this in mind.

Please let me know if you need any more information.

Regards,
Sean