| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 154 |
| Hearing date | 28 Mar 2017 - 29 Mar 2017 (2 days) |
| Determination date | 25 May 2017 |
| Member | A Fitzgibbon |
| Representation | P Akbar ; B Edwards, A Jackman |
| Location | Auckland |
| Parties | Ecommbi Ltd v Dangi |
| Summary | PENALTY - Applicant sought penalty for respondent’s breach of good faith and breach of restraint of trade - COUNTERCLAIM - PENALTY - Respondent sought penalty for applicant’s breach of employment agreement and failure to pay parking expenses and holiday pay - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of work expenses - Software Developer |
| Abstract | AUTHORITY FOUND -;PENALTY: Respondent’s failure to tell applicant about future employment plans did not amount to misleading or deceptive conduct. Respondent entitled to seek alternative employment. Information respondent provided to new employer was not confidential information. Respondent migrant and significant inequality of bargaining power at time employment agreement entered into. Activities restraint sought to restrict, business intelligence and e-commerce, extremely broad category of work. Applicant did not have proprietary interest in technology used by respondent. Restraint did not seek to protect proprietary interest. 12 month period not reasonable length of restraint. Restraint unenforceable. Even if modified, reasonable period had since passed. Authority not prepared to modify restraint. Non-solicitation clause does not apply to partnership between applicant and respondent’s new employer. Non-solicitation clause not reasonable and, if modified, reasonable period had already passed. No penalty.;COUNTERCLAIM - PENALTY: Employment agreement provided applicant to reimburse applicant for parking expenses. Applicant did not provide respondent’s final holiday pay. Breaches deliberate. Deterrence necessary. $4,000 penalty appropriate.;COUNTERCLAIM - RECOVERY OF MONIES: Applicant not entitled to withhold parking expenses. Applicant to pay respondent $250 recovery of monies. |
| Result | Application dismissed (penalty) ; Application granted (counterclaim - recover of monies)(counterclaim - penalty) ; Penalty in favour of respondent ($4,000)(payable to respondent) ; Recovery of monies in favour of applicant ($250) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s4 ; ERA s4(1)(a) ; ERA s4(1)(b) ; ERA s135(2) ; ERA s136 ; ERA s174E ; Holidays Act 2003 s75 ; Illegal Contracts Act 1970 s7 ; Illegal Contracts Act 1970 s8 |
| Cases Cited | Asiaciti Trust New Zealand Ltd v Harris [2013] NZEmpC 238, (2013) 11 NZELR 519;Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Faccenda Chicken Ltd v Fowler [1986] 1 All ER 625 (CA);Fletcher Aluminium Ltd v O'Sullivan [2001] 2 NZLR 731 (CA);Gallagher Group Ltd v Walley [1999] 1 ERNZ 490 (CA);H & R Block Ltd v Sanott [1976] 1 NZLR 213 (SC);James & Wells Patent and Trademark Attorneys v Snoep [2009] ERNZ 284 (EmpC);Pottinger v Kelly Services (New Zealand) Ltd [2012] NZEmpC 101, [2012] ERNZ 411;Rooney Earthmoving Ltd v McTague [2009] ERNZ 240 (EmpC);Telecom South Ltd v Post Office Union (Inc) [1992] 1 NZLR 275 (CA);Welsh v Cooney [1993] 1 ERNZ 407 (CA) |
| Number of Pages | 27 |
| PDF File Link: | 2017_NZERA_Auckland_154.pdf [pdf 341 KB] |