| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 75 |
| Hearing date | 8 Aug 2016 - 9 Aug 2016 and 5 Sep 2016 - 6 Sep 2016 (4 days) |
| Determination date | 20 March 2017 |
| Member | Nicola Craig |
| Representation | D Organ ; M Clark |
| Location | Auckland |
| Parties | Aggreko (NZ) Ltd v McEnery |
| Summary | COMPLIANCE ORDER – Applicant sought compliance with Authority determination - PENALTY – Applicant sought penalty for respondent’s breach of fidelity – BREACH OF CONTRACT – Applicant sought exemplary damages for respondent’s breach of employment agreement - COUNTERCLAIM – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy - Respondent claimed unjustifiably disadvantaged by applicant’s failure to pay bonus and failure to consider respondent for other positions– Respondent claimed unjustifiably dismissed by applicant– COUNTERCLAIM – ARREARS OF WAGES – Respondent sought payment of unpaid bonus – COUNTERCLAIM – RESTRAINT OF TRADE – Applicant sought declaration that restraint of trade unlawful and damages |
| Abstract | AUTHORITY FOUND –COMPLIANCE ORDER: Respondent not required to inform applicant about possibility of working for competitor after end of employment Respondent sent confidential information to home email address. Sending of emails not disclosure to third party but still breach of duty of fidelity. Respondent also emailed client to keep in contact after end of employment, which was breach of duty of fidelity. Respondent in breach of consent determination of Authority. Compliance ordered.BREACH OF CONTRACT: Unclear whether Authority can award exemplary damages. In any case, applicant cannot be awarded exemplary damages and penalties for same conduct. No damages.PENALTY: Two breaches for penalty purposes. No evidence of any actual harm suffered. Breaches deliberate. Some need for deterrence. Respondent had limited ability to pay. $5,000 penalty appropriate.COUNTERCLAIM – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Genuine redundancy situation. Respondent generally undertook fair process. Failure to raise possibility of slightly different role minor in circumstances and did not result in respondent being treated unfairly. Dismissal justified. Applicant decided not to pay bonus to respondent based on perception of respondent’s conduct concerning emails but did not discuss issue with respondent. Respondent unjustifiably disadvantaged by failure to pay bonus. Respondent did not consider on-going opportunities while applicant on notice period but extremely unlikely that parties would have agreed on redeployment after emails discovered. Respondent not unjustifiably disadvantaged by failure to consider respondent for other positions. REMEDIES: $500 compensation appropriate.COUNTERCLAIM – ARREARS OF WAGES: Applicant unjustifiably failed to pay bonus. Applicant to pay respondent arrears of wages, quantum to be determined.COUNTERCLAIM – RESTRAINT OF TRADE: Employees unable to seek damages after complying with unenforceable restraint of trade clause. No damages. |
| Result | Applications granted (compliance order)(penalty)(counterclaim – unjustified disadvantage)(counterclaim – arrears of wages) ; Orders made ; Penalty ($2,500)(payable to applicant) ($2,500)(payable to respondent) ; Compensation for humiliation etc ($500) ; Arrears of wages (quantum to be determined) ; Applications dismissed(counterclaim – unjustified dismissal)(counterclaim – restraint of trade) ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s103A(5) ; ERA s133(1)(a) ; ERA s133A ; ERA s135(2)(a) ; ERA s174E |
| Cases Cited | Able Owl XL Ltd v Gladden [2015] NZEmpC 166 ; Aggreko (NZ) Ltd v McEnery [2016] NZERA Auckland 185 ; Borsboom v Preet Pvt Ltd [2016] NZEmpC 143 ; Gallagher Group Ltd v Walley [1999] 1 ERNZ 490 (EmpC) ; Korbond Industries Ltd v Jenkins [1992] 1 ERNZ 1141 (EmpC) ; TAG Oil (NZ) Ltd v Watchorn [2014] NZERA Wellington 58 ; Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 ; Xtreme Dining Ltd v Dewar [2016] NZEmpC 136 ; Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 32 |
| PDF File Link: | 2017_NZERA_Auckland_75.pdf [pdf 383 KB] |