1 Franklin Place
Springville, NSW- 1250
Our reference: WDC-345238
Rick Clarkson, Attorney-at-Law
486 Crestwood Place
Springville, NSW-1345
Dear Mr. Clarkson:
RE: Intellectual Property Rights Law
I am Christianne Kelly, Office Manager of Italian Brothers, an Italian restaurant in Springville, NSW. I have been with the restaurant for about 15 years now and have witnessed its growth from its humble beginnings into what it is today. The owners of the restaurant are brothers Mark and Marco Esposito who have been in partnership in running the restaurant since 1981. Now on its 32nd year, Italian Brothers continue to be one of Australia's favorite Italian eateries with its high quality food and superb customer treatment.
The purpose of my letter is to seek your legal advice on a matter concerning an employee of our restaurant, Mr. Niko Conti, a TAFE student who is studying to be a Chef. He has been working for Italian Brothers on casual basis, does not have a working contract with the restaurant, and does not have a fixed schedule in the restaurant. Depending on the restaurant's peak seasons, Mr. Conti works 2-4 days a month to 20 days a month. He is a good worker and is eager to learn about the restaurant business. He volunteers to cook for the evening customers and because of his enthusiasm, is often allowed to do so under the guidance of Mr. Mark Esposito, who is the restaurant's head chef. Aside from working as a part-time chef, Mr. Conti's extends to serving the customers and performing other job functions in the kitchen when needed.
The owners recently found out that Mr. Conti is about to finish his TAFE course and has plans of acquiring a Chinese restaurant, which he intends to turn into an Italian bistro within the same area as Italian Brothers. Apparently, Mr. Niko will head the place as its main Chef. Upon learning the situation, the brothers decided they have to cease their working arrangements with Mr. Conti because he could bring with him their customers, and more importantly, their secret recipes, which he has been writing down during his tenure.
As a result, Italian Brothers restaurant believes that as a company, it has the right to terminate working relations with Mr. Conti considering that the company does not have specific working arrangements with him and that he is paid in cash at the end of his workday. In addition, the restaurant owners intend to give Mr. Conti two week's notice on his impending employment termination citing "changes [in] operational requirement" as grounds for dismissal.
In addition, the company believes its intellectual property rights may be violated and put at risk by Mr. Conti's opening his own Italian restaurant. Because Italian Brothers' owners want to ensure their trade secrets are safe and cannot be used by former employees, the company would like Mr. Conti to sign a non-disclosure agreement or confidentiality agreement. The agreement stipulates that Mr. Conti agrees he will neither use nor disseminate any classified information such as recipes and restaurant processes, gained or learned during his tenure with Italian Brothers.
In this regard, I would like to ask your good office for advices whether this is the best path to follow in order to protect the company's rights without violating Mr. Conti's employment rights as well. Will these assertions guarantee that the company has the right to sue the employee in case he violates the confidentiality agreement? Can he file a case against the company for illegal dismissal despite serving a 2-week notice?
In behalf of Italian Brothers restaurant, I would like to thank you in advance for your legal assistance on the matter.
[SIGNATURE]
Ms. Christianne Kelly
The Office Manager
