| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 61 |
| Hearing date | 13 Feb 2015 |
| Determination date | 26 February 2015 |
| Member | E Robinson |
| Representation | D Fleming ; T Oldfield |
| Location | Auckland |
| Parties | E-Lighting Ltd v Dickens and Ors |
| Other Parties | Peter, Hunza Production Ltd |
| Summary | INJUNCTION - Applicant sought interim injunction restraining first and second respondents from breaching restraint of trade (ROT") provision in employment agreements ("EA") and implied duties of fidelity and good faith - Business development representative and production manager / sales engineer" |
| Abstract | AUTHORITY FOUND -;INJUNCTION: Allegation of conspiracy against first and second respondents tortious concept outside Authority's jurisdiction. EAs containing ROT provision supplied to first and second respondents but no evidence EAs signed. Sufficient evidence to suggest that first and second respondents obtained confidential information during course of employment with view to competing against applicant, and in particular competing in respect of existing supplier. First and second respondents may well have used applicant's confidential information in order to gain business from applicant's customers and suppliers and to further own interests. First respondent reached agreement with other supplier while still employed by applicant. Arguable case for breach of fidelity in relation to first and second respondents' dealings with suppliers. Arguable case for injunctive relief. Applicant may be able to rebuild commercial relationship with supplier. Reasonable to assume first respondent's business and second respondent would continue to earn living despite injunction. Damages not adequate alternative remedy. Balance of convenience favoured applicant. Overall justice of case favoured applicant. First and second respondents to be prohibited from competing with applicant by making use of applicant's proprietary information, from using applicant's proprietary information or acting as distributors for supplier in relation to product lines formally subject of agreement with applicant. Application for injunctive relief granted. |
| Result | Application granted ; Orders made ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA;ERA s4;ERA s4(1)(a);ERA s4(1)(b);ERA s64(6);ERA s134;ERA s161(1)(r);ERA s162 |
| Cases Cited | Credit Consultants Debt Services NZ Ltd v Wilson (No 2) [2007] ERNZ 205 (EmpC);Rooney Earthmoving Ltd v McTague [2009] ERNZ 240 (EmpC);Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243 (CA);Telecom South Ltd v Post Office Union (Inc) [1992] 1 NZLR 275 (CA);Tisco Ltd v Communication & Energy Workers Union [1993] 2 ERNZ 779 (CA) |
| Number of Pages | 18 |
| PDF File Link: | 2015_NZERA_Auckland_61.pdf [pdf 214 KB] |