| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 201 |
| Hearing date | 7 Feb 2013 - 8 Feb 2013 (2 days) |
| Determination date | 24 May 2013 |
| Member | T G Tetitaha |
| Representation | DJG Cox ; SJ Neville |
| Location | Auckland |
| Parties | Allied Workforce Ltd t/aTradeforce Recruitment v Te Ao |
| Summary | RESTRAINT OF TRADE – INJUNCTION – Applicant sought injunction restraining respondent from commencing employment with competitor – Whether respondent breached restraint of trade – Respondent recruited by competitor – Applicant’s client transitioned business to respondent’s new employer – Whether respondent solicited client – Respondent not required to work out notice period – Employment lasted five months – Restraint covered Greater Auckland – Six month restraint – Whether restraint enforceable – Recruitment consultant |
| Abstract | AUTHORITY FOUND –;RESTRAINT OF TRADE – INJUNCTION: Respondent’s job description did not accurately describe role. Respondent not solely responsible for certain clients. Applicant’s proprietary interest protected by pricing now non-existent. No evidence respondent physically removed confidential information. Respondent’s clients not exclusive to applicant. No close and personal relationships between respondent and clients. Insufficient proof to show client solicited by respondent. If restraint not upheld, confidential information and clients would remain with applicant. Enforcing restraint would likely create financial hardship for respondent. Applicant could not seek to effectively extend notice period for duration of restraint. Respondent junior employee. Minimal impact caused by respondent’s departure. Restraint unreasonable and unenforceable. Application for injunctive relief declined. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Restraint of Trade |
| Cases Cited | Broadcasting Corp of New Zealand v Nielsen (1988) 2 NZELC 96,040;DB Breweries Ltd v Marshall [1994] 1 ERNZ 98;Debtor Management (NZ) Ltd v Quail [1993] 2 ERNZ 498;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490;Jerram v Franklin Veterinary Services (1977) Ltd [2001] ERNZ 157;Kiwis Stat Ltd v Nichols [2010] NZEmpC 151;Mason (Pauper) v Provident Clothing and Supply Co Ltd [1913] AC 724;Radio Horowhenua Ltd v Bradley [1993] 2 ERNZ 1085 |
| Number of Pages | 9 |
| PDF File Link: | 2013_NZERA_Auckland_201.pdf [pdf 218 KB] |