Barrett and Ors v Ecco Personnel Pty Limited Matter No Ca 40586/96 [1998] NSWSC 545
[1998] NSWSC 545
At a glance
AI case summaryResult
appellant. Appeal dismissed with costs
Key principles
- The word 'solicit' in a non-solicitation clause of an employment contract should not be construed in a highly mechanical fashion based solely on who made the first approach to...
- While in most instances the first approach will be made by the ex-employee to the former customer, this is not the exclusive means by which solicitation may occur.
- The fact that a client makes the initial approach to a former employee does not, of itself, preclude a finding that the employee subsequently solicited or enticed that client...
- Where a client provides the 'window of opportunity' or acts as a catalyst for the employee to submit a proposal and make a presentation that effectively causes the client to...
Issues before the court
- Whether a former employee can be in breach of a non-solicitation clause when the initial approach was made by the client rather than the employee
- Whether there was sufficient evidence to support the finding that the second appellant (Elizabeth Kulevska) was co-operating with Barrett in his...
Plain English Summary
This case establishes that a former employee can still breach a non-solicitation clause even when a client makes the first approach to them. The court rejected the argument that 'solicitation' only occurs when the employee initiates contact. Instead, the court looked at who was the effective cause of the client transferring their business. Here, although Nestlé asked Barrett to submit a proposal after he left his former employer, Barrett's subsequent presentation was the effective cause of Nestlé deciding to switch to his new business. This constituted solicitation and enticement in breach of his employment contract. The court emphasised that 'solicit' should not be interpreted mechanically based on who spoke first, but rather by looking at the substance of what happened and who drove the business transfer.
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