Lawyers are sometimes criticised for not being able to advise whether a potential claim will be successful or not. It is a case of “on the one hand, but on the other hand”. However, the reality is that each case is different. Not only does each case revolve around its own facts but success can depend a multitude of variables. For instance, how hard will the employer defend the case, what are witnesses going to be like in court, which court is hearing the matter and ultimately the judge making the decision. You can generally flick a coin about who is going to win or lose once the hearing starts, no matter how strong or how weak the case.
It is for these reasons that lawyers are often cautious about prospects, even in simple cases. Take two recent unfair dismissal decisions involving employees working for the same company. In Adam Thompson v Ventia Australia Pty Ltd, the employee was dismissed for misconduct. He had been employed as a Firefighter with the company for almost 8 years. He was involved in viewing and distributing pornographic and racist material mostly out of hours to a group comprising mostly other employees. However, on one occasion, the conduct occurred during work hours and this was sufficient to make the dismissal fair, when coupled with the applicant’s abusive behaviour during the dismissal interview.
However, a different result ensued in the case of Martin Pelly which involved essentially the same facts and the same Fair Work Commission member. Again, the applicant was a firefighter, employed for a little over 5 years with this employer. He was a member of the group set up by Mr Thompson and had published a post during work hours which was of a pornographic nature and inappropriate. It was accepted that a valid reason for termination existed but the Commissioner considered the dismissal to be unreasonable. This was because the employer treated a third employee differently, in similar circumstances, and some of the employer’s information was inaccurate.
Now let’s look at post employment restraint examples. The 2020 case of DJRA Pty Ltd v Griffin involved the Mackay manager of a pre insolvency advice business. After 3 years, Mr Griffin established his own business in Mackay in direct competition to his former employer. His employment contract contained a non compete clause for varying periods up to 12 months and varying areas with Queensland being the smallest area. In dismissing the interim injunction application, the court considered the geographic restriction to be too wide and took into account that granting an injunction for 12 months would effectively destroy Mr Griffin’s business.
Contrast this with the 2021 decision of Australian Timber Supplies v Welsh. This involved a Queensland state manager leaving the company after almost 4 years and establishing his own business which was in competition with his former employer. There was a contractual post employment restraint against engaging in a competing business for 12 months within 100km of the employer’s Stapylton office. The judge in this case considered the restrictions to be “relatively modest” and “reasonably short” to protect the employer’s legitimate business interests. The most significant difference in the 2 cases was the geographic restriction. And just to make the point, the judge in the Welsh case noted a full injunction hearing could be held within 12 months and did NOT consider the interim ruling to be effectively final relief. On the other hand, in another restraint case of AECI Australia v Convey, the judge said that a similar delay in a final hearing WOULD have the effect of final relief.
The truth is that just about anything can, and often does, happen once a case gets inside the doors of a court. It is for this reason that good lawyers are cautious in their advice and you should be careful of anyone who says a case is rolled gold certain. This is why an early settlement is often wise to save the cost and uncertainty of a trial outcome.
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