In a recent decision the Federal Circuit and Family Court of Australia has ordered an injunction until final hearing to restrain a former Silversea cruises sales consultant from soliciting clients of his former employer.
The Facts
The employee commenced with Silverseas Cruises Australia on 1 December 2016 as a cruise sales consultant. On 30 November 2024 he agreed to an updated employment contract containing:
- A confidentiality term stating that confidentiality obligations would continue to apply after the termination of employment, and
- A non-solicitation term restricting him from soliciting business from clients with whom he was in contact during the 12 months preceding the employment termination.
His employment with Silversea was terminated on 7 August 2025. Soon after he commenced working at a travel sales business which was a host agency for selling Silversea cruises.
Silversea was concerned it was suffering losses as it had to pay commissions to host agencies selling its cruises.
On 23 December 2025 a solicitor for Silversea wrote to the former employee stating that he had breached the confidentiality and non-solicitation terms by taking bookings for Silversea cruises.
On 30 December 2025 the employee replied by denying any breach of the employment terms, though not denying that he was communicating with and accepting bookings from relevant clients.
Soon before, on 8 December 2025, the employee had commenced proceedings in the Federal Circuit and Family Court of Australia alleging that he was dismissed by Silversea in breach of the general protections provisions of the Fair Work Act.
On 13 February 2026 Silversea filed a defence to the employee’s claim, also crossclaiming for breach of the confidentiality and non-solicitation terms resulting in losses of USD108,266.20 for cancelled bookings that had been rebooked with the host agency.
After the employee again denied that he was continuing to contact and accept bookings from relevant clients, Silversea applied to the Court for an injunction restraining him from further breaches of the confidentiality and non-solicitation terms.
The Decision
At the hearing the Court was satisfied that:
- Silversea had established a sufficient (prima facie) case that the employee had breached the confidentiality and non-solicitation terms of his employment agreement, and damages would not be an adequate remedy, and
- The ‘balance of convenience’ favoured ordering an injunction because:
- Silversea would continue to suffer losses if the employee continued to contact the relevant clients,
- Calculating the losses suffered by Silversea would be complex,
- Silversea had acted prudently in warning the employee about his conduct and there was no unexplained delay,
- Silversea appeared to have a strong case, and
- The injunction would not restrain the employee from working for his new employer, only from using Silversea’s confidential information and from contacting the relevant Silversea clients.
The Court granted the injunction though did not restrict the employee from servicing the existing client bookings, so that those clients would not be inconvenienced. The Court noted that Silversea could claim damages for those clients at the final hearing.
Implications
Employees should carefully consider the confidentiality, non-solicitation and other terms of an employment offer before agreeing to them or engaging in conduct that may breach them.
Employees should also carefully consider whether commencing a general protections (or similar) application against their employer could trigger a crossclaim for potential breaches of ongoing obligations.
Employers are reminded that properly worded restraint clauses can be a very effective measure to protect their business.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.