05 August 2016
Dear Mentor
Can updating a LinkedIn profile and publishing details of new employer on LinkedIn after termination of employment be considered as breach of post-employment non-solicitation provision?
Would you be able to refer me to any case law on point?
Thank you.
Thank you for the question.
There is little case law in this area. The decision in Bradford Pedley v IPMS Pty Ltd T/A peckvonhartel [2013] FWC 4282 relates to a group email sent via LinkedIn where the Fair Work Commission held that the employee breached fundamental employment obligations by deliberately and actively soliciting clients for his own business.
The decision in Tipto Pty Ltd v Yuen [2015] NSWSC 1086 involved an ex-employee advertising his new business on LinkedIn, where some of his connections were clients of his ex-employer. Absent any detailed evidence, the court could only draw the conclusion that the employee and his former employer's clients 'were simply connected' on LinkedIn. No adverse inference could be drawn from mere connection.
While it is arguable that a LinkedIn profile update is no different to a general advertisement or announcement, and therefore does not amount to a solicitation, if a former client contacts the ex-employee as a result of seeing his or her updated profile, the likelihood of a solicitation occurring increases.
Regards
Mentor
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