4 June Court finds 15km post-employment restraint reasonable June 4, 2016 By Reef Admin Post employment restraint, Recent court decisions 0 One of the most common problems faced by real estate employers is what to do to protect the commercial goodwill of the business from exploitation by ex-employees. REEF's Workplace Relations Advisor, Laura Clark, examines this all to common problem and details a recent Supreme Court case where a real estate employer successfully had a post-employment restraint upheld. Issues concerning the post-employment activities of ex-employees are one of the most common conversations we have with members. This includes things from trying to prevent an ex-employee from working with a competitor agency, to ex-employees approaching (or rather poaching) clients of the employer (either vendors or landlords), to ex-employees starting up their business in competition with the employer. One common feature in all these discussions is the realisation that enforcing a post-employment restraint is a most frustrating and legally complex predicament! But be assured, despite criticism that post-employment restraints in employment contracts have questionable legal value, the employment contract is still the main instrument by which your business can protect itself from ex-employees. The only implied obligation which remains post-employment is that the ex-employee cannot use or disclose confidential information or trade secrets of the employer. If you wish to impose more general restraints on an ex-employee, you must do so by agreement in a form that is usually written into the employment contract. Recently, the NSW Supreme Court found that a real estate agency’s attempts to impose restraints on a former employee (a property manager) within a 15 kilometre radius were reasonable and that the former property manager’s failure to abide by this restraint amounted to a breach of contract. In determining whether to enforce a restraint provision in an employment contract, the court will consider whether the restriction itself, the radius of the restriction and the period of the restriction go beyond what is necessary to protect the employer’s interest. In this particular case, the employee set up her own company operating in the same area, and in competition with her former employer, during the final two months of her employment. The employee admitted to having approached a number of her previous employer’s clients before and after the termination of her employment, in attempts to get those clients to direct their business to her new company. In all, the employee obtained 25 of her former employer’s clients. The Employment Agreement (which was the REEF template with amendments) contained restraint provisions, including that the employee was restrained from using confidential information to her own advantage without the prior consent of the employer. A post-employment restraint of 6 months and 15 kilometres was also imposed. The agency sought to enforce the restraint and asked the Court to find that the former employee’s actions constituted a breach of the contract of employment. The judge ruled that a restraint of 15 kilometres from the office was an “appropriate balance to protect the plaintiff’s confidential information and to provide the freedom for the defendant to establish a viable business.” In summing up, the judge also made the following observation: “There is no issue that the defendant has breached the terms of her Employment Agreement. Those breaches include acting in breach of her implied duty of loyalty and good faith and using the plaintiff’s confidential information other than in the performance of her duties. The defendant obtained a springboard for her own business by poaching the plaintiff’s clients. This was done in part by misusing the plaintiff’s confidential information and providing it to [the new business] for the purpose of establishing the business by poaching the plaintiff’s clients.” This case demonstrates how important it is for real estate employers to include restraint provisions in an employment agreement, and the extent to which a reasonable restraint can protect your business. The case also highlighted the importance of employers taking great care to ensure restraint provisions are crystal clear, so that the employee and employer fully understand the extent of the restraint and the restrictions the employee must abide by after termination. An error or misunderstanding in these provisions could result in the restraint being unenforceable. Commentary As REEF has stated many times previously, this area of law is governed by discretionary principles of reasonableness and fairness and there will always be a degree of uncertainty as to whether or not a particular restraint will be enforceable. The Courts have generally looked unfavourably upon any bar to competition in a free enterprise economy which operates to reduce the freedom of the individual to contribute his or her skill or experience. A post-employment restraint is therefore regarded as invalid unless the employer can establish that it is confined to reasonably protecting the legitimate business interests of the employer and not unduly injurious to the interests of the employee and the public. Each situation will have to be assessed on its own particular set of facts and circumstances. Notwithstanding, employers who do not insert restrain provisions into their contracts of employment will find they have few, if any rights to prevent an employee from poaching their clients or business. Members are strongly encouraged to talk to one of our workplace relations advisers prior to commencing any legal action against a former employee for breaching post-employment obligations prescribed in the employment contract. Further, members can find sample Employment Agreements, including restraint provisions, in the People Management System of the REEF website. Related Keeping post-employment restraints intact Enforcing a post-employment restraint can be extremely complex – and expensive! Matthew Robinson provides tips to help members through the process and maximise their chances of success. Challenging an employee's post-employment conduct Before challenging a former employee's post-employment conduct, you have to be sure your own house is in order. One employer found out the hard way. Post-employment breach costs new employer A recent decision by the Full Court of the Federal Court of Australia marks new territory in the scale of remedy for post-employment breaches with a new employer hit with a $6.5 million order. Medical certificates and personal leave policies Can a personal leave policy insist that employees provide a medical certificate as proof of illness or injury? And if it does, is the policy compliant with the Fair Work Act 2009 and modern awards? Nothing comes for free: Is unpaid work experience lawful? The REEF Helpline often receives calls from members asking if unpaid work experience is OK. Unfortunately, except in very limited circumstances, the answer is a resounding "no". A message from the CEO: Employment contracts A question REEF CEO Bryan Wilcox is often asked with whether workplace policies should be included in employment contracts. Here, he explains why it's not recommended. 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