| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 240 |
| Hearing date | 29 Apr 2014 |
| Determination date | 17 June 2014 |
| Member | J Crichton |
| Representation | D Erickson ; M McGoldrick ; S Grice |
| Location | Auckland |
| Parties | ISO Ltd v Kena and Anor |
| Other Parties | Independent Stevedoring Ltd |
| Summary | RESTRAINT OF TRADE - BREACH OF CONTRACT - INJUNCTION - PENALTY - Applicant sought damages for first respondent's breach of restraint of trade provision (ROT") in employment agreement ("EA") - Applicant sought injunction preventing first respondent's breaches of EA - Applicant sought penalty for first respondent's breach of EA and second respondent's aiding and abetting breach of EA - Resignation to work for applicant's competitor - Six month restraint - Associate operations manager" |
| Abstract | AUTHORITY FOUND -;RESTRAINT OF TRADE - BREACH OF CONTRACT - INJUNCTION - PENALTY: First respondent not senior employee of applicant. First respondent's previous employer closely related to applicant and first respondent had similar EA but without ROT. First respondent did not engage with applicant's clients. Applicant lost stevedoring contract at particular port to company that subcontracted second respondent to physically load vessels. Any IT process or product used in ship loading under control of successful company rather than second respondent. Difficult to see what needed protection if first respondent had no opportunity to even inadvertently use or disclose applicant's material. Claims made regarding applicant's particular IT system may have over-emphasised system's uniqueness. ROT neither reasonable nor enforceable. Only effect of ROT to seek to prevent first respondent earning living in chosen work. First respondent not provided with adequate opportunity to be advised of ROT in new EA or get legal advice. First respondent not given copy of signed EA. Manner in which EA executed so unreasonable as to invalidate any right applicant had to be protected. No breach of contract. Application for injunctive relief declined. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Restraint of Trade |
| Cases Cited | Asiaciti Trust New Zealand Ltd v Harris [2013] NZEmpC 238 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_240.pdf [pdf 178 KB] |