| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 373 |
| Determination date | 17 October 2012 |
| Member | J Crichton |
| Representation | M Kyriazopoulos ; C Patterson, A Reid |
| Parties | Clarke v Southern Paprika Ltd |
| Summary | PENALTY - Applicant claimed respondent had breached confidentiality clause of parties’ settlement agreement (“SA”) - Authority found respondent breached SA confidentiality clause when applicant named by respondent in unrelated Authority proceedings – Found respondent had obligation to provide all relevant evidence but was not necessary to reveal applicant’s identity in unrelated matter - Found applicant did not provide evidence of harm caused by breach of SA – Found respondent’s breach of SA inadvertent - No penalty |
| Abstract | Applicant claimed respondent had breached confidentiality clause of parties’ settlement agreement (“SA”). Respondent denied breached SA or alternatively claimed breach inadvertent rather than wilful. Matter determined on papers. Respondent employee (“X”) filed claim with Authority and claims included had been unjustifiably disadvantaged by disparity of treatment. Respondent gave evidence of applicant’s situation, named applicant and indicated applicant dismissed as part of claim X not subject to disparate treatment when employed by respondent.;AUTHORITY FOUND –;PENALTY: Respondent breached SA confidentiality clause when applicant named by respondent in Authority proceedings relating to X’s claims. Respondent could have responded to X’s claims adequately without naming applicant in breach of SA. Respondent had obligation to provide all relevant evidence but was not necessary to reveal applicant’s identity in unrelated matter. Witness immunity did not apply to respondent’s situation. Effect of SA was to record applicant resigned from employment rather than was dismissed by respondent. No statutory basis to award applicant compensation however penalty against respondent could be awarded. Applicant did not provide evidence of harm caused by breach of SA. Respondent’s breach of SA inadvertent. No penalty. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s149(4) |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 6 |
| PDF File Link: | 2012_NZERA_Auckland_373.pdf [pdf 146 KB] |