In brief - The answer may depend on when and how well you have drafted your restraint of trade clause in the employment contract

Employers frequently ask us if they can prevent an employee from working for a competitor after the employee resigns. While it depends on the facts of each individual case, a carefully considered and drafted restraint of trade clause in a contract of employment may achieve this outcome. Unfortunately, most clauses we see are invalid and unenforceable because legal advice has not been obtained on this technical area of law at the time of entering into the contract.

Wallis Nominees v Pickett case example

The well-known Victorian decision of Wallis Nominees (Computing) Pty Ltd v Matthew William Pickett [2012] VSC 82 demonstrates the limits of restraint of trade clauses and the consequences of poorly drafted clauses. In that case, the employee (Pickett) was employed by the employer (Wallis Nominees) as an IT specialist. Pickett had a contract of employment restraining him from providing certain services to clients of Wallis Nominees within 12 months after ceasing employment with Wallis Nominees.

During his employment Pickett was offered and accepted an IT job with a client of Wallis Nominees for whom Pickett had been providing certain IT services on behalf of Wallis Nominees. When Pickett resigned to take up the job Wallis Nominees brought legal action in the Supreme Court of Victoria. Wallis Nominees alleged that Pickett had breached the restraint of trade clause in his contract of employment by accepting a job with a client performing similar IT services to those performed at Wallis Nominees.

Restraint of trade clause found to be unenforceable as it was invalid and unreasonable

The starting point for a restraint of trade clause is that it is void as against public policy unless the employer can prove a legitimate business interest deserving of special protection. The Supreme Court of Victoria held that Wallis Nominees could not enforce the restraint of trade clause against the employee in this case because it was invalid and unreasonable for the following reasons:

  • Firstly, Pickett was not considered by the judge to be at risk of exploiting the customer connections of Wallis Nominees because he was not the “human face” of that business and did not have the relevant control over the business of the client to enable such exploitation. The skills and experience Pickett had gained while working for Wallis Nominees did not constitute a legitimate business interest that Wallis Nominees could protect by the restraint.
  • Secondly, the length of the restraint clause (12 months) was too long because it was longer than Wallis Nominees needed to find an effective replacement for Pickett. As such, the clause was unreasonable.

Take away tips

Restraint of trade clauses need to be considered at the start of employment, not the end. Employers wishing to rely on enforceable restraint of trade clauses in contracts of employment should seek legal advice.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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