| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 329 |
| Hearing date | 7 Mar 2013 |
| Determination date | 01 August 2013 |
| Member | K J Anderson |
| Representation | Dr K Martyn ; S Aymeric |
| Location | Auckland |
| Parties | Navanukul v Petrina Martin t/a Magic Tan and Beauty |
| Summary | BREACH OF CONTRACT – RESTRAINT OF TRADE – Respondent sought damages for applicant’s breach of restraint of trade and confidentiality – Whether applicant signed employment agreement - Applicant resigned employment – Whether applicant became independent contractor prior to resignation – Applicant informed respondent she intended to return to Thailand – Applicant opened salon 1.2 kilometres from respondent’s premises – 63 clients did not return to respondent following applicant’s resignation - Whether applicant solicited clients - Beauty therapist |
| Abstract | AUTHORITY FOUND –;BREACH OF CONTRACT – RESTRAINT OF TRADE: More probable than not agreement applied to applicant’s employment. Clear applicant intended to be employee at all times. No evidence of applicant operating business on own account while employed. Applicant remained under control of respondent. Applicant remained employee until resignation. Reasonable to assume applicant intended to establish own business. Nothing particularly novel or commercially valuable about respondent’s business. Respondent did not have proprietary interest entitled to protection. Inconclusive whether applicant had access to respondent’s client base. Respondent suffered financial detriment following applicant’s resignation. No corroborative evidence indicating applicant solicited clients. Insufficient evidence for order of damages. Application dismissed. |
| Result | Application dismissed ; Costs to lie where they fall |
| Main Category | Restraint of Trade |
| Statutes | ERA s162 - Holidays Act 2003 s28 |
| Cases Cited | Fuel Espresso Limited v Hsieh [2007] ERNZ 60; [2007] 2 NZLR 651;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490;Peninsular Real Estate Ltd v Harris [1992] 2 NZLR 216;Stenhouse Australia v Phillips [1974] AC 391 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Auckland_329.pdf [pdf 204 KB] |