Deal with a former employee confidentiality breach

We will help you stop a former employee from doing the very thing their restraint and confidentiality clauses were meant to prevent.

A former employee who is breaching their restraint or taking confidential information with them is a problem with a short shelf life. Every week the conduct continues, the client relationships, the know-how, and the workforce stability you have built up walk further out the door. We act for employers across Australia on enforcement matters, from a sharp letter that stops the conduct quickly through to an urgent court application when one is needed. The objective is the same one you have: the conduct stops, the harm is contained, and the business gets back to what it was doing.

What is post-employment restraint and confidentiality?

Post-employment restraints are contractual clauses that limit what a former employee can do after their employment ends, typically stopping them for a period from competing, soliciting clients, soliciting staff, or using confidential information. Whether a restraint is enforceable depends on whether it is reasonable in scope, duration, and geography, and whether the employer can identify a legitimate interest the restraint is protecting. Confidentiality obligations work differently: they can survive employment indefinitely where the information remains genuinely confidential, with or without a written clause to back them up.

Are post-employment restraints actually enforceable?

Yes, but only where the restraint is reasonable in scope, duration, and geography, and you can point to a legitimate interest the restraint is protecting. Well-drafted cascading restraints, which set out alternative durations and geographic limits, give courts room to enforce the narrowest reasonable version. Broad restraints that simply prevent competition without identifiable protection are much harder to uphold.

How quickly do I need to act if there is a breach?

Quickly. Courts expect a party seeking an urgent injunction to have moved as soon as the breach was identified, and any delay is treated as evidence that the harm is not really urgent. The few months after a key employee leaves are usually when they can do the most damage, so the right time to engage lawyers is the day the breach is suspected, not after weeks of internal investigation.

What remedies are available?

The main remedies are an injunction stopping the conduct, an account of profits or damages for losses caused, delivery up of confidential material, and a springboard injunction that prevents the former employee from gaining a head start by using confidential information. The most effective remedy in most matters is an interlocutory injunction granted at the outset, because it stops the conduct while the substantive claim is resolved.

What if there is no restraint clause but confidential information seems to be in play?

The duty of fidelity during employment and the equitable duty of confidence after it operate independently of any written clause, and both can be enforced against a former employee who uses or discloses information that is genuinely confidential to the business. A standalone confidentiality deed entered into at any point during employment also strengthens the position. The case is harder without a written restraint, but it is far from impossible if the information meets the legal test for confidentiality.

An urgent legal response that takes the heat out of the situation.

An honest assessment of what is actually enforceable.

Court applications run by lawyers who actually run them.

Every week of inaction is a week the breach gets worse.

Restraint and confidentiality enforcement is one of the few areas of employment law where the speed of response materially changes the outcome. Speak with us early and we will assess the position and act before the harm becomes harder to undo.

Confidentiality and restraint clauses only protect the business if they are actually enforced.

A former employee is doing something their contract said they would not do, and the longer it goes unaddressed the more clients, staff, or confidential information walk out the door with them. The frustration is compounded by uncertainty: is the clause even enforceable, what are the realistic remedies, and how much intervention will it take compared with the damage being done?

We will assess the enforceability of the restraint, confidentiality, or other contractual obligation.
We will identify the legitimate interest the obligation protects and the strongest grounds for action.
We will issue cease and desist correspondence designed to stop the conduct without litigation where possible.
We will prepare and run an interlocutory injunction application where urgent relief is necessary.
We will pursue damages, an account of profits, or delivery up of confidential material where appropriate.

A former employee who left under difficult circumstances is now doing exactly what their restraint clause was supposed to prevent.

A senior employee left the business in the last few months, and the departure was not clean. They have now appeared at a competitor, started their own competing operation, or begun contacting your client list directly, and the evidence is mounting that confidential information left the building with them. You knew there were restraints in the contract, and you knew there were confidentiality obligations, but until this moment you had not had to think about whether they actually worked. The conduct is live, the harm is happening now, and the question is how fast you can stop it.

What's included in your restraint and confidentiality enforcement service

Review of the employment contract and restraint clauses.
Assessment of the enforceability of the restraint and confidentiality obligations.
Cease and desist correspondence to the former employee and any new employer.
Evidence preservation advice covering devices, email, and customer data.
Interlocutory injunction preparation and court application.
Springboard injunction and delivery up applications where applicable.
Damages and account of profits claims.

What happens when a breach is not acted on quickly?

Restraint and confidentiality breaches that are tolerated, even for a few weeks, become significantly harder to remedy. Clients who are now being serviced by the former employee build a new relationship with them; staff who follow the former employee become entrenched in their new role; confidential information that has been disclosed cannot be unlearned. The longer the conduct continues, the weaker the urgency argument becomes if injunctive relief is sought, and the more substantial the underlying damage to the business becomes. Many employers who eventually do act find themselves recovering compensation for harm that was largely preventable at the outset.

Here is how we move quickly to stop the breach and protect what was at risk.

We assess the contract and the conduct on the same day we are engaged, and we identify which obligations are most likely to be enforced and which evidence supports the case. In most matters, a carefully drafted letter to the former employee and the new employer stops the conduct without court proceedings, particularly where the new employer has its own reasons not to be on the receiving end of an injunction application. Where litigation is necessary, we prepare the interlocutory injunction application quickly and with the focus on what the court actually requires: a serious question to be tried, the balance of convenience, and the inadequacy of damages. The objective throughout is to stop the harm and protect what the contract was meant to protect.

Three steps to enforcing the restraint and stopping the breach.

Assessed, addressed, contained.

Assess the breach.

We review the contract, the conduct, and the evidence within hours of being engaged.

Issue the demand.

We draft and send cease and desist correspondence designed to stop the conduct without litigation.

Apply for injunctive relief.

If the conduct does not stop, we prepare and run an urgent interlocutory injunction application.

Employment and litigation lawyers who run urgent restraint and confidentiality matters.

There is a particular kind of anger that comes from watching a former employee do exactly the thing they signed a contract promising not to do, and that anger is almost always justified. Our team runs restraint and confidentiality enforcement matters as core work, with experience taking matters from first cease and desist letter through to contested interlocutory injunctions in the Supreme Court. We know which restraint clauses courts will support and which they will not, and we tell you that honestly at the start so the strategy fits the strength of the case. The outcome that matters is the conduct stopping, and that is what we focus on.

We understand you want to know the cost, before we get started.

We will map out our process, from beginning to end, so you know what the journey will look like before you get started.

We will provide you with a clear and detailed Work Proposal covering each step along the way.

Our fair fees are all-inclusive. No hidden costs for telephone calls, emails, photocopying, couriers, or coffee.

Our great lawyer guarantee

We want to be part of your team over the long term. We achieve this by adhering to these core principles:

Take the time

We listen carefully to understand what you want to achieve. Then we thoroughly explain our advice and step you through the documents. You can be sure you know the full consequences.

Share our knowledge

We will pass on as much knowledge as we can, so you can make your own informed decisions. We want to make you truly independent.

Stick to our knitting

We only do what we're good at. You can be confident that we know what we're doing and don't pass on the cost of our learning.

Work as one team

Someone will always be available to answer your questions, or point you in the right direction. You will also benefit from a range of perspectives and experience.

Fair pricing

For advice and documents, we provide a fixed or capped quote so you don't take price risk. If you're in a dispute, we map out the process and costs so you know what to expect.

It's your show

We're not in this for our egos. We're in it for a front row seat to witness your success.

Ready to stop the breach before it costs more?

How to co-own property without conflict, confusion, or costly mistakes

You’ve been told to make a family trust election. Here’s what that actually means.

Changes to trust taxation in the Federal Budget: Is there still a case for keeping a family trust in my structure?

How we built our AML/CTF compliance into the way we already work

Tagged 300