| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 36 |
| Hearing date | 13 - 15 Nov 2012 |
| Determination date | 22 February 2013 |
| Member | D Appleton |
| Representation | J Burley ; P Shaw |
| Location | Christchurch |
| Parties | RCG Ltd v Bercich and Anor |
| Other Parties | Bercich Management Ltd |
| Summary | BREACH OF CONTRACT - RESTRAINT OF TRADE - Applicant sought damages for first respondent's breach of employment agreement - Whether first respondent breached obligations of good faith, fidelity, and trust and confidence - Whether first respondent disclosed applicant's confidential information - Whether first respondent breached non-compete clause of employment agreement - Whether second respondent incited, instigated, aided or abetted first respondent in breaching employment obligations -Whether applicant's business with customer (B") would have continued if first respondent had not entered agreement with B - Negotiating with applicant's customers - Devoting time at work to non-work obligations - Solicitation of customers and employees - Conflict of interest - Remuneration incentive - Resignation - Associate director" |
| Abstract | AUTHORITY FOUND -;BREACH OF CONTRACT - RESTRAINT OF TRADE: Applicant reneged on remuneration agreement which amounted to repudiatory breach of employment agreement. First respondent breached express and implied terms of employment agreement. No disclosure of confidential information as customer (B") already knew information. First respondent breached duty of good faith, fidelity and trust and confidence. Second respondent wholly owned by first respondent and first respondent could not incite, instigate, aid or abet self. B would have terminated relationship with applicant when first respondent resigned, even if no breach by first respondent. Solicitation of employee lawful as employee dismissed by applicant. No loss attributed to breaches. Other breaches based on first respondent leaving employment and first respondent entitled to do so. No damages. Directions to be issued in respect of submissions for penalties." |
| Result | Application dismissed; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4 - ERA s134(2) |
| Cases Cited | Rooney Earthmoving Ltd v McTague [2009] ERNZ 240 |
| Number of Pages | 19 |
| PDF File Link: | 2013_NZERA_Christchurch_36.pdf [pdf 328 KB] |