BARRETT and ORS v ECCO PERSONNEL PTY LTD [1998] NSWCA 30

BARRETT v ECCO PERSONNEL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, STEIN JJA and FITZGERALD AJA 2 November 1998, 24 November 1998

[1998] NSWCA 30

CONTRACT OF EMPLOYMENT — construction of 'solicit? — whether former employee was in breach of a provision not to solicit when the initial approach to him was made by the client

The appellant submits that he was not in breach of his contract of employment with his former employer (the respondent) as the initial approach, inviting the appellant to submit a proposal, was made by the client and not by him. The contract provided that he would not 'canvass, solicit, interfere with or entice away' any client of the employer for a period of 4 months after the termination of the contract.

The trial judge concluded that, although the client may have provided the window of opportunity, it was the appellant who had solicited and enticed the client away from the respondent.

Held on appeal:

It is not appropriate to construe 'solicit' in a mechanistic fashion. In most instances the first approach will be made by an ex-employee to the former customer, however common sense demands that this is the not the exclusive means by which solicitation may occur. That the approach by the client was the catalyst or trigger for the solicitation by the appellant any less the mover for the action happening.

Sheller JA I agree with Stein JA.

Stein JA The short point in this appeal is whether when a client (Nestlé) of the respondent (Ecco Personnel Pty Ltd) makes the first approach to the appellant, a previous employee of the respondent, he can be in breach of his contract of employment.

The employment contract of the appellant relevantly provided that, for a period of four months after the date of termination of employment, the employee shall not 'canvass, solicit, interfere with or entice away any person, firm or company... being a client or employee of the Employer'.