| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 7 |
| Hearing date | 17 Jan 2012 |
| Determination date | 24 January 2012 |
| Member | M Ryan |
| Representation | C McGuinness ; J A Burney |
| Location | Wellington |
| Parties | Pure Hairdressing Ltd v Kosmidakis and Anor |
| Other Parties | Forward Go Ltd t/a GLO Hairdressing Johnsonville Ltd |
| Summary | INJUNCTION - RESTRAINT OF TRADE – Applicant sought interim injunction to prevent first respondent (“K”) from continuing new employment with second respondent (“F”) - Applicant claimed employment with F breached restraint of trade clause in parties’ employment agreement (“EA”) – K claimed EA’s restraint of trade clause unenforceable as onerous and unreasonable – K resigned when offered employment with F – Applicant offered to reduce restraint period if K agreed not to commence employment with F until after reduced period terminated - K claimed lawyer told K not to respond to applicant’s offer – Applicant advised F would seek injunction if K commenced employment – Applicant claimed restraint of trade clause protected applicant’s proprietary interest in applicant’s customers - Applicant claimed K had strong connections with clients and because of skill K billed up to quarter of applicant’s turnover - Authority found arguable case applicant had proprietary interest in customers – Applicant claimed particular restraint duration required so applicant’s customers could be moved to new stylist – Found arguable case restraint duration reasonable although possibility would be modified at substantive hearing – Applicant claimed restraint radius reasonable and situation exacerbated as F very close to applicant’s workplace – K claimed had child care responsibilities and restraint unreasonable – Found arguable restraint radius reasonable – Found applicant had established arguable case for substantive relief – Applicant claimed potential loss could put applicant below break-even point – K claimed particular customers identified as using F’s services were K’s personal acquaintances – Found K’s financial position meant unlikely K could satisfy award of damages – Found adequate alternative remedy not available to applicant – Found balance of convenience finely balanced but favoured applicant – Application for injunctive relief granted - Senior Stylist |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s174;Illegal Contracts 1970 s8 |
| Cases Cited | Airgas Compressor Specialists Ltd v Bryant [1998] 2 ERNZ 42;American Cyanamid Co v Ethicon Limited [1975] AC 936;Fuel Espresso Ltd v Hsieh [2007] ERNZ 60 ; [2007] 2 NZLR 651;Klissers Farmhouse Bakeries Limited v Harvest Bakeries Limited [1985] 2 NZLR 129;Rodwil Enterprises Limited (previously T/A War Hair Design) v Dominguez & Anor unreported, R Arthur, 3 September 2007, AA 272/07;Servilles Ltd v Whiting unreported, Colgan J, 2 June 2000, AC 47/00;Tournament Parking Ltd v Munro unreported, K Anderson, 21 May 2010, AA 236/10;Walley v Gallagher Group Ltd [1998] 3 ERNZ 1153 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Wellington_7.pdf [pdf 68 KB] |