Harden v Willis Australia Group Services Pty Ltd; Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 939

Procedural Posture

Principal Judgment; Combined Hearing of Two Related Proceedings—claims and Counterclaims / Final Decision at First Instance, Equity Division, Supreme Court of Nsw, Before Sackar J

Legal Issues

1. 1 ['Whether Willis breached or repudiated the employment contract by directing Harden to lie to clients' 'Whether the direction amounted to a repudiatory breach' 'Whether and for how long any post-employment restraint on Harden is enforceable' 'Whether Harden solicited employees or clients of Willis in breach of duties' 'Whether any injunctions/restrictions regarding confidential information are warranted' 'Whether the restraint of trade is reasonable and enforceable' 'Whether the contract should be rectified as sought by Willis']

Ratio Decidendi

The direction by Willis to Harden to tell clients he was ‘on leave’ was a breach of the implied term of good faith, as it required him to be dishonest and was not consistent with honest standards of conduct. However, this was not a repudiation—it was not sufficiently fundamental to evince an objective intention not to be bound by the contract or a fundamental term. In context, Harden was suspended from his usual duties (not on leave or gardening leave), so under the contract’s terms, the period of suspension reduced any applicable post-employment restraint. The two-year restraint of trade was unreasonable given Harden’s age, the lack of pay during the second year, and industry/custom....

Court Disposition

Willis did not repudiate the contract. Harden was suspended, so restraint period is reduced. Two-year restraint void as unreasonable; restraint exhausted as of 1 July 2021. Orders sought regarding alleged solicitation of employees/clients or use of confidential information are refused. Rectification not granted....

Orders

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