The High Court has ordered Vodafone Ireland Limited not to interfere with Octavio Hernandez’s employment arrangement with Telefonica Ireland Limited (O2), pending trial of his claim. The order was conditional on undertakings from both sides and did not decide whether the non-compete clause in Mr Hernandez’s contract was enforceable.
Mr Hernandez had worked for Vodafone for more than seven years, most recently as Enterprise Roaming Proposition Manager. He resigned in December 2012 and was offered a Business Product Manager role with O2, due to start on 21 January 2013. Vodafone told him his employment would end on 24 January and said he could not take up the new role for six months after that date.
Vodafone also wrote to O2 warning that Mr Hernandez would breach his contract by starting earlier and that it could seek an injunction. The judgment records that Vodafone and O2 subsequently agreed he would not start before 1 May 2013, with Vodafone releasing him from the restrictions from that date. Mr Hernandez said he was not party to that arrangement; the judge said that could not be determined at this stage. He faced losing more than three months’ salary.
Mr Hernandez sought interlocutory injunctions restraining Vodafone from preventing him taking up the O2 job or otherwise interfering with the employment contract. He also sought a declaration that clause 9.3 of his 2005 contract, which restricted work in competing or conflicting business activity in Ireland for six months after termination, was void and unenforceable.
The judge found there was a fair issue to be tried over whether Vodafone had wrongfully prevented him from starting the O2 role on 24 January. She said the enforceability of clause 9.3 could not be decided on this interlocutory application. The court’s decision concerned only interim relief pending trial.
In weighing the application, the judge accepted that the lost remuneration was under €20,000 but found it was crucial to Mr Hernandez and his family, so damages would not be an adequate remedy for him. She also noted that he accepted he remained bound by the contract’s non-solicitation and confidentiality clauses. The balance of convenience favoured relief, subject to protection for Vodafone.
The court ordered the injunctions in the terms sought, pending trial, on condition that Vodafone undertake on oath to comply with clauses 9.4 and 10, and relying on Mr Hernandez’s undertaking as to damages. The judge said the court would try to assist the parties to have the substantive issue heard as early as possible. The order did not require Vodafone to pay Mr Hernandez’s salary during the period before his O2 start date.