| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 25 |
| Hearing date | 16 - 17 Dec 2015 (2 days) |
| Determination date | 21 January 2016 |
| Member | Anna Fitzgibbon |
| Representation | Dew, Choi ; GB Hill (in person) |
| Location | Auckland |
| Parties | Tex Onsite Ltd v Hill |
| Summary | BREACH OF CONTRACT – Applicant sought damages for respondent’s breach of non-solicitation, confidentiality and fidelity terms of employment agreement (“EA”) – Restraint of trade - PENALTY – Respondent sought penalties for breach of EA and obstructing Authority investigation |
| Abstract | AUTHORITY FOUND –;BREACH OF CONTRACT: Order for non-publication of financial information and customer details of applicant. Respondent planning to work for competitor before resignation. Respondent assisted competitor with business and began work before resignation. Respondent breached express duty of good faith and implied duties of fidelity and loyalty. Respondent unlawfully retained and used applicant’s confidential information. Respondent made contact with former customers and offered services of new employer during non-solicitation period. Respondent breached non-solicitation clause in EA. Respondent to pay applicant $8,750 special damages and $10,000 general damages. Interest payable. Respondent ordered to return any property of applicant.;PENALTY: Respondent deliberately breached EA. $8,000 penalty appropriate for breaches of EA. Respondent failed to provide evidence after Authority direction and deleted evidence on USB device. Respondent acted contemptuously by posted inappropriate comments on social media. Respondent’s actions serious and deliberate. Actions obstructed Authority investigation. $10,000 penalty appropriate. |
| Result | Applications granted ; Orders made ; Damages ($18,750) ; Interest (5%) ; Penalty ($18,000)(payable to applicant) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s134;ERA s134(1);ERA s134A;ERA s136(2);ERA s174E;ERA Second Schedule cl11;Judicature (Prescribed Rate of Interest) Order 2011, cl4 |
| Cases Cited | Auckland Regional Council v Tilialo ERA Auckland AA368/09, 15 October 2009;Medic Corp Ltd v Barratt (No 2) [1992] 3 ERNZ 977 (EmpC);Nova Energy v Mitchell (No 6) [2015] NZERA Auckland 337;Tex Onsite Ltd v Hill [2015] NZERA Auckland 161;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 30 |
| PDF File Link: | 2016_NZERA_Auckland_25.pdf [pdf 442 KB] |