I have a non-solicitation clause in my contract with my

Hi, I’m John Melis, solicitor, and I am in Australia. I want to thank you for taking the time to speak with me today. Your question means a lot to me. If I were in your position, I would feel just as you do. I’m so glad you contacted us about your situation. I will give you a direction to consider moving forward. I know you’ve spent a lot of time on this already. Your patience here has been so important. If I understand you correctly I suggest the following:

On the facts you have provided the restraint is both broad and narrow, and in some parts you will be restricted with the action you can take, while with other aspects you are ok to act upon.

When considering whether to enforce a restraint of trade clause, the courts will weigh up a number of competing interests including: the employer’s interests in protecting its confidential information, customer connections and other legitimate business interests; the employee’s ability to earn a living using his or her skills, experience and know-how; and the public interest in freedom of trade and competition.

The general rule is that all restraint clauses are void as against public policy unless it can be shown that: the clause protects a legitimate interest of the employer; the clause is reasonable to protect that interest; and enforcement of the clause would not be contrary to the public interest.

A court will not enforce a restraint clause that attempts merely to stifle competition from former employees — the employer must be able to identify a specific business interest which reasonably requires the protection of a restraint clause.

Interests that can legitimately be protected under a restraint clause include: confidential information (ie where an employee has had access to confidential information during their employment and may be able to use that knowledge to the detriment of the employer once the employment ends) client/customer connections and details (ie where an employee has had personal dealings with clients/customers and the employee represents the business to the customer or is the ”human face” of the business, and there is a risk that the employee may solicit or entice those clients/customers to move their business from the old employer to the new employer); and the maintenance of a stable, trained workforce (ie the courts may enforce a restraint clause to prevent a former employee from poaching key members of staff).

If satisfied that the employer has a legitimate interest to protect, the courts will consider whether the restraint clause is reasonable in its scope. A restraint must go no further than what is reasonably necessary to protect the identified interest of the employer.

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I know it isn't easy to deal with issues like this, but you're handling it so well.

I can hear your concern and your voice, and if you follow the steps I've suggested above, it will give you a direction to go.

I know you have a lot of choices, and there are various ways to move forward.

If there is anything else, big or small, that I can help you with today, please let me know?

I am so glad you contacted us, and I thank you for reaching out today.

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