BGC Partners (Australia) Pty Limited v Hickey [2016] NSWSC 90

BGC Partners (Australia) Pty Limited v Hickey [2016] NSWSC 90

The employment contract remains on foot as the purported resignation by Mr Hickey was a repudiation not accepted by BGC; as such, the express terms for termination govern, and there is no implied right to terminate on reasonable notice. The restraint clauses are enforceable so far as they are reasonable to protect BGC’s legitimate interests. Mr Hickey is to be restrained for a reasonable period (nine months from cessation of actual employment), that period reflecting a combination of the notice and restraint periods in the contract, providing BGC a fair opportunity to protect its client connections.

Parties
Plaintiff: BGC Partners (Australia) Pty Limited; Defendant: Anthony Hickey
Jurisdiction
Australia
Judgment Date
18 February 2016
Procedural Posture
Principal Judgment / Expedition List, Final Decision Following Expedited Hearing
Outcome
Defendant to be restrained until 11 September 2016
Legal Topics
Restraint of Trade, Employment Contracts, Termination and Repudiation of Employment, Implied Contractual Terms, Injunctions, Interpretation of Contracts
Equity Employment Law Contract Law Restraint of Trade Employment Contracts Termination and Repudiation of Employment Implied Contractual Terms Injunctions +1 more

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Parties

BGC Partners (Australia) Pty Limited

Plaintiff

Anthony Hickey

Defendant

Procedural Posture

Principal Judgment / Expedition List, Final Decision Following Expedited Hearing

Legal Issues

  1. 1 Whether post-employment restraint of trade clauses in employment contract are valid and enforceable
  2. 2 Whether the employment contract remains on foot after repudiation and purported resignation by the employee
  3. 3 Whether there is an implied term allowing resignation on reasonable notice where an express term for termination exists

Ratio Decidendi

The employment contract remains on foot as the purported resignation by Mr Hickey was a repudiation not accepted by BGC; as such, the express terms for termination govern, and there is no implied right to terminate on reasonable notice. The restraint clauses are enforceable so far as they are reasonable to protect BGC’s legitimate interests. Mr Hickey is to be restrained for a reasonable period (nine months from cessation of actual employment), that period reflecting a combination of the notice and restraint periods in the contract, providing BGC a fair opportunity to protect its client connections.

Court Disposition

Defendant to be restrained until 11 September 2016

Orders

  • Mr Hickey is restrained from departing from his contractual obligations until 11 September 2016
  • Mr Hickey is restrained from acting inconsistently with obligations under cl 15.2 of the Terms and Conditions until 11 September 2016