| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 190 |
| Hearing date | 25 Feb 2015 |
| Determination date | 25 June 2015 |
| Member | V Campbell |
| Representation | A Drake, R Gillies ; M Donovan |
| Location | Auckland |
| Parties | Orica New Zealand Ltd v Mattson |
| Summary | BREACH OF CONTRACT – Applicant sought damages for respondent’s breaches of employment agreement (“EA”) by breaching confidentiality obligations, failing to return all company property upon termination of employment and breaching duty of fidelity – PENALTY – GOOD FAITH - Applicant sought penalty for respondent’s breaches of EA and good faith - COUNTERCLAIM – ARREARS OF WAGES AND HOLIDAY PAY – Respondent sought arrears of wages and holiday pay – Deductions from wages – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought reimbursement of business expenses – COUNTERCLAIM – PENALTY - GOOD FAITH – Respondent sought penalty for applicant’s failure to allow respondent to use company vehicle during notice period and uplifting vehicle from respondent’s home- Technical Account Manager |
| Abstract | AUTHORITY FOUND –BREACH OF CONTRACT: Respondent took photocopied client information from business cards to new employment. Respondent failed to return confidential information in presentation and on USB device but information not used by respondent. Respondent not entitled to take client transition forms just because respondent had designed forms. Forms intellectual property of respondent. Respondent use forms in new employment. Respondent failed to return company USB device despite repeated demands from respondent. Respondent breached duty of fidelity by deliberately copying applicant’s confidential information for use in new employment. Applicant failed to demonstrate any loss from breaches. No damages.PENALTY – GOOD FAITH: Respondent breached duty of good faith by twice misleading applicant about potential move to new employment. Breaches of good faith and EA serious and sustained. $5,000 penalty appropriate.COUNTERCLAIM – ARREARS OF WAGES AND HOLIDAY PAY: Applicant incorrectly reduced respondent’s entitlement to paid annual leave. Applicant unlawfully deducted wages to cover cost of car repairs. Applicant to pay respondent $2,540 arrears of wages and $1,317 arrears of holiday pay.COUNTERCLAIM – RECOVERY OF MONIES: Applicant failed to reimburse respondent’s business expenses incurred during employment. Applicant to pay respondent $123 recovery of monies.COUNTERCLAIM – PENALTY - GOOD FAITH: Statutory duties of good faith ended with termination of employment. Applicant’s conduct in accordance with EA did not breach good faith. No penalty. |
| Result | Applications granted (penalty)(counterclaim-arrears of wages and holiday pay)(counterclaim-recovery of monies) ; Penalty ($5,000)(payable to applicant) ; Arrears of wages ($2,540.64) ; Arrears of holiday pay ($1,317.24) ; Recovery of monies ($123.60) ; Application partially granted (breach of contract) ; Application dismissed (counterclaim- penalty - good faith) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4A(a);ERA s4A(e);ERA s133(1)(a);ERA s135(2)(a);ERA s136(2) |
| Cases Cited | Auckland Regional Council v Tilialo ERA Auckland AA368/09, 15 October 2009;Jonas v Menefy Trucking Ltd [2013] NZEmpC 200, [2013] ERNZ 651;Medic Corporation Ltd v Barrett (No 2) [1992] 3 ERNZ 977 (EmpC);Tan v Yang [2014] NZEmpC 65;Walden v Barrance [1996] 2 ERNZ 598 (EmpC) |
| Number of Pages | 24 |
| PDF File Link: | 2015_NZERA_Auckland_190.pdf [pdf 238 KB] |