| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 184 |
| Determination date | 10 May 2013 |
| Member | J Crichton |
| Representation | M Dew ; J McAllister (in person) |
| Parties | Matamata Industrial Machinery Ltd v McAllister |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Matter concerned whether respondent breached employment agreement (“EA”) in setting up business in competition with applicant – Authority found important questions of law likely to arise including issues around causation of loss, remoteness of damage, basis for assessment of damages and whether respondent breached EA as matter of law – Found fact application for removal made jointly by parties, EC seized with application in relation to matter, challenge to determination almost inevitable and parties would have access to more formal discovery process in EC meant in all circumstances matter should be determined by EC – Matter removed to EC – Sales representative |
| Abstract | Respondent employed by applicant as sales representative. Parties sought removal of matter to Employment Court (“EC”) on grounds important questions of law likely to arise and in all circumstances matter should be determined by EC. Applicant claimed respondent established competing business while employed by applicant, failed to return applicant’s property after resigning and diverted significant business from applicant to own company. Respondent accepted explored setting up own business but denied breached express or implied terms of employment agreement (“EA”) and pointed out no restraint of trade provision in EA. Parties claimed important questions of law likely to arise including scope of respondent’s contractual duties, extent of statutory good faith duty, whether respondent’s actions while employed by applicant breaches of duty and appropriate legal principles concerning causation, remoteness and quantification of damages. Applicant had obtained search order and interim injunction against respondent from EC.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: While significant factual disputes between parties, questions of law arising likely to be of critical importance. Important questions of law likely to arise including issues around causation, remoteness of damage, basis for assessment of damages and whether respondent breached EA as matter of law. EC seized of matter to extent issued search warrant and interim injunction still in place. Quantum of potential remedies meant challenge to Authority determination almost inevitable. Regime for disclosure of documents in EC created genuine benefit to parties in complex litigation. Application for removal made by parties jointly. In all circumstances matter should be determined by EC. Matter removed to EC. |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178;ERA s178(2)(a);ERA s178(2)(d) |
| Cases Cited | Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;Rooney Earthmoving Ltd v McTague [2007] ERNZ 356 |
| Number of Pages | 5 |
| PDF File Link: | 2013_NZERA_Auckland_184.pdf [pdf 149 KB] |