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Excerpt from this article first published in Human Resources Magazine, Issue 124 - 20 March 2007
In Brink’s v Kane, the Supreme Court for the first time enforced a clause contained in an employment contract restraining an employee from working with a competitor.
Mr Kane resigned from Brink’s and shortly after accepted employment with a rival security transport firm, MDS. Evidence suggested that during his last six weeks with Brink’s, Mr Kane engaged in numerous activities which amounted to abuse of his obligations of confidentiality and the restraint of trade clause within his employment contract. These activities included:
Soliciting away clients and employees from Brink’s to MDS;
Encouraging the transfer of business opportunities from Brink’s to MDS;
Providing to MDS, Brink’s confidential information, such as customer listings and pricing information;
Discussing potential employment with MDS in a similar role as held at Brink’s; and
Keeping possession of Brink’s contracts, which he should not have access to.
Despite the lack of damage suffered by Brink’s, the Court found that nothing had yet "borne fruit" for Mr Kane because had only been employed with MDS for a week. The judge noted that if restrained, any hardship suffered by Mr Kane was self-induced.
Based on Mr Kane’s conduct, the judge considered that if not restrained, Mr Kane would misuse Brink’s confidential information. As such, the Court granted an interlocutory injunction to enforce the restraint of trade obligations in Mr Kane's contract with Brink’s, preventing Mr Kane from being employed by MDS for 3 months.
