| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 13 |
| Hearing date | 6 Sep 2011 - 7 Sep 2011 (2 days) |
| Determination date | 23 January 2012 |
| Member | J Crichton |
| Representation | A Shirnack ; D Beck |
| Location | Christchurch |
| Parties | Living Earth Ltd v Knight |
| Summary | BREACH OF CONTRACT – GOOD FAITH - Applicant claimed respondent breached parties’ settlement agreement (“SA”) and good faith obligations - Applicant claimed respondent downloaded applicant’s material onto applicant’s data sticks so could remove material when employment ended - SA stated respondent would cease employment on particular date and would return applicant’s property on termination – Parties employment agreement included clause that respondent would keep applicant’s information confidential and would not copy applicant’s property for personal use or third party benefit - Applicant sought reimbursement of compensation and costs award applicant paid respondent in accordance with SA and further costs incurred by applicant – Authority ordered non-publication of commercially sensitive evidence produced by parties – Respondent purchased data sticks on applicant’s behalf on last day of employment – Respondent claimed personally collected data sticks from supplier as wanted to deliver material to applicant’s client (“X”) – X never received material and respondent acknowledged work for X never completed – Applicant discovered someone had downloaded applicant’s intellectual property and respondent’s personal material on data sticks - Respondent claimed never downloaded material on to data sticks as information not ready on respondent’s last day - Other employees had access to respondent's office and could have downloaded material – Authority found if respondent had improper purpose more likely would have better concealed purchase of data sticks – Respondent claimed left data sticks at workplace when employment ended – Applicant’s claim administrator (“J”) claimed respondent left workplace on last day with data sticks - Found some issues with J’s evidence – Applicant claimed respondent accessed applicant’s confidential information on personal computer using data sticks – Respondent claimed as used personal computer for work purposes had applicant’s documents stored on personal computer – Respondent claimed received data sticks in mail, discovered they contained applicant’s information and sent them back to applicant – Applicant claimed never received data sticks in mail but later found them at workplace after employee received text message indicating where data sticks kept – Data sticks had been deliberately damaged in attempt to prevent access to material – Found likely someone else unconnected to respondent stored data sticks at workplace either to assist or hinder respondent – Respondent claimed had no interest in applicant’s business after employment ended and new employment in different field – Found on balance of probabilities respondent’s evidence truthful and no evidence respondent misused applicant’s information – Found no evidence respondent used applicant’s property for own purposes or third party benefit – Found no evidence respondent’s behaviour devious or respondent attempted to mislead applicant – Found respondent’s actions did not show respondent had undermined duties of fidelity or fair dealing – Found no evidence respondent had done anything improper with applicant’s information had allegedly retained – Application dismissed - Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA Second Schedule cl10(1) |
| Cases Cited | Northern Distribution Union Inc v Carter Holt Harvey Ltd [2001] ERNZ 822 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_13.pdf [pdf 63 KB] |