| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 150 |
| Hearing date | 26 Apr 2012 |
| Determination date | 04 May 2012 |
| Member | E Robinson |
| Representation | R McGinn ; R Harrison |
| Location | Auckland |
| Parties | Kelly Services (New Zealand) Ltd v Pottinger & Ors |
| Other Parties | Nine Dot Consulting Ltd, Carew |
| Summary | INJUNCTION - Applicant sought injunction and orders against respondents preventing respondents from soliciting applicant's clients - Authority found arguable case that first respondent (P") and third respondent ("C") has access to client information that was applicant's property - Found arguable case that six month non-solicitation clause reasonable and enforceable - Found balance of convenience in favour of applicant - Found arguable case that C breached non-solicitation clause when approached applicant's clients and C continued to approach clients after aware applicant claimed C had breached employment agreement - Found overall justice of case favoured applicant - P and C ordered to not solicit or otherwise deal with parties P and C had met as result of employment with applicant - P and C ordered not to procure or assist N or others in breach of Authority's orders - Injunction granted, conditions of injunction stated" |
| Abstract | Applicant sought urgent injunction against first respondent (P") and third respondent ("C") preventing P and C from soliciting applicant's clients. Second respondent ("N") applicant's competitor. Applicants resigned. P previously operated N with husband ("M"). P claimed when employment commenced would retain interest in N but would not actively participate in N's operation. C told applicant resigning as M had offered C employment with N. Applicant's client ("J") claimed had received call from M asking if could take on J as N's customer. Applicant claimed P and C had flagrantly breached employment agreement ("EA") and breach could cause applicant immeasurable damage. P denied had been any discussion when employment commenced about restraint of trade. P and C claimed applicant's business was temporary recruitment and N's business was permanent recruitment therefore not in competition. Applicant claimed likely C and P had approached considerable number of applicant's clients and clause did not prevent respondents from engaging in fair competition.;AUTHORITY FOUND -;INJUNCTION - Respondent had discussed each EA section with applicant including EA non-solicitation clause. P had C had initialled each page of EA including non-solicitation clause page and P and C experienced in recruitment industry. Applicant had arguable case that P and C entered into employment with applicant knowing EAs contained non-solicitation clauses. Arguable case that P and C has access to client information that was applicant's property. Applicant had arguable case that six month non-solicitation clause reasonable and enforceable. Balance of convenience in favour of applicant. Applicant had arguable case that C breached non-solicitation clause when approached applicant's clients and C continued to approach clients after aware applicant claimed C had breached EA. No evidence from respondents that respondents could meet damages award. Damages not adequate alternative to injunction. Clause protected applicant's proprietary rights but applicant had opportunity to earn living until substantive matter heard. Overall justice of cases favoured applicant. P and C ordered to not solicit or otherwise deal with parties P and C had met as result of employment with applicant. P and C ordered not to procure or assist N or others in breach of Authority's orders. Injunction granted. Conditions of injunction stated." |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA 134;ERA s162 |
| Cases Cited | Broadcasting Corporation of NZ v Nielsen (1988) 2 NZELC 96,040;Credit Consultants Debt Services NZ Ltd v Wilson (No 2) [2007] ERNZ 205;Fuel Espresso Ltd v Hsieh [2007] ERNZ 60;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Auckland_150.pdf [pdf 64 KB] |