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Benchmark - Cases & Commentary
Employment
    •  Restraint on soliciting clients
        -  Following termination of employment



Following termination of employment 

Keith Soames Real Estate had employed Ms Bambrick. Initially, Ms Bambrick had a written contract of employment that contained provisions that prohibited her from soliciting any of Keith Soames Real Estate’s clients after her employment terminated.

Ms Bambrick’s first term of employment came to an end and Keith Soames Real Estate invited her to return to work. Ms Bambrick returned to work, but no new written contract was put in place, and there was no discussion about whether she would face any restrictions on her ability to solicit Keith Soames Real Estate’s clients after her employment finished.

After Ms Bambrick’s second term of employment was terminated, Keith Soames Real Estate sought orders from the Supreme Court restraining Ms Bambrick from soliciting its clients.

Keith Soames Real Estate argued that Ms Bambrick had been re-hired on the basis that the terms and conditions of her first employment period would continue to apply.

Gzell J held that post-contractual restraints are not properly characterised as terms and conditions of employment, rather they are properly characterised as post-employment obligations. Therefore, even if Keith Soames Real Estate had told Ms Bambrick that her previous terms and conditions would continue to apply, this would not have included the restraint on her soliciting its clients after termination of her employment.

The Supreme Court therefore refused to restrain Ms Bambrick from soliciting Keith Soames Real Estate’s clients.

Keith Soames Real Estate (Thornleigh) Pty Ltd v Bambrick [2011] NSWSC 543