| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 74 |
| Hearing date | 28 & 29 Oct 2015 (2 days) |
| Determination date | 08 March 2016 |
| Member | Vicki Campbell |
| Representation | M O'Brien, B Nicholson ; M Ryan |
| Location | Auckland |
| Parties | AON New Zealand v West & Anor |
| Other Parties | Andrew West Insurance Broker Ltd |
| Summary | RESTRAINT OF TRADE – Applicant sought damages for respondent’s breaches of restraining covenants, a signed undertaking and confidentiality obligations – PENALTY – Applicant sought penalty for first respondent’s breach of employment agreement and second respondent’s aiding and abetting of first respondent’s breaches - Account manager |
| Abstract | AUTHORITY FOUND –;RESTRAINT OF TRADE: Applicant had legitimate proprietary interest in client information and links. Restraining covenants reasonable and enforceable. First respondent aware of contractual obligations. First respondent informed applicant of intention to breach restraining covenants. First respondent free to work with anyone who had not been a client of his while working for applicant. First respondent had dealings with former clients of his at applicant. First respondent breached restraining covenants. First respondent sent applicant’s information to personal email account without authorisation. First respondent breached confidentiality clause. First respondent to pay applicant $60,449 damages.;PENALTY: First respondent’s actions deliberate and calculated. No remorse shown. $8,000 penalty appropriate. Second respondent aware of first respondent’s obligations and that first respondent acting in breach of obligations. $5,000 penalty appropriate. |
| Result | Applications granted ; Damages ($60,449.88) ; Penalty ($8,000)(payable to applicant)(first respondent)($5,000)(payable to applicant)(second respondent) ; Costs reserved |
| Main Category | Restraint of Trade |
| Statutes | ERA s134(1);ERA s135(2);ERA s136(2);ERA s174E |
| Cases Cited | Aarts v Barnardos NZ Ltd [2013] NZEmpC 85, [2013] ERNZ 201;Airgas Compressor Specialists Ltd v Bryan [1998] 2 ERNZ 42 (EmpC);Credit Consultants Debt Services NZ Ltd v Wilson (No 3) [2007] ERNZ 252 (EmpC);Fuel Espresso v Hsieh [2007] NZCA 58, [2007] 2 NZLR 651;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490 (CA);Medic Corporation Ltd v Barrett (No 2) [1992] 3 ERNZ 977 (EmpC);Tag Oil (NZ) Ltd v Watchorn [2014] NZERA Wellington 58;Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733;Tex Onsite Ltd v Hill [2016] NZERA Auckland 25 |
| Number of Pages | 23 |
| PDF File Link: | 2016_NZERA_Auckland_74.pdf [pdf 352 KB] |