| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 221 |
| Hearing date | 18 May 2017 - 19 May 2017 (2 days) |
| Determination date | 28 July 2017 |
| Member | R Arthur |
| Representation | A Schirnack, S Bonney-Lovegrove ; T Oldfield |
| Location | Auckland |
| Parties | Lancom Technology Ltd v Forman and Anor |
| Other Parties | Kang |
| Summary | BREACH OF CONTRACT – Applicant sought damages for respondents’ breaches of employment agreements (“EAs”) - PENALTY – Applicant sought penalties for respondents’ breaches of EAs – Software Developer |
| Abstract | AUTHORITY FOUND -;BREACH OF CONTRACT: Product respondents were developing not in competition with applicant and did not breach restraint of trade. Time first respondent spent on private business exchanges during paid work hours breached EA. First respondent did not breach EA through poor performance on key contract. No damages recoverable for remedial costs. Second respondent breached non-solicitation clause. Second respondent aided and abetted first respondent’s breach of obligation not to do private work in time paid for by applicant. No damages.;PENALTY: Respondents deliberately breached EAs. Breaches caused no direct commercial harm to applicant. First respondent attempted to mitigate applicant’s concerns. Neither respondent profited from breaches. Need to deter others. Respondents had means to meet penalty. $4,000 penalty appropriate for first respondent. $4,000 penalty appropriate for second respondent. |
| Result | Application granted (penalty) ; Penalty ($4,000)(first respondent)(payable to applicant) ($4,000)(second respondent)(payable to applicant) ; Application dismissed (breach of contract) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s133A ; ERA s134(2) ; ERA s136 ; ERA s174E ; ERA s157 ; ERA s160(1)(f) ; ERA s160(2) |
| Cases Cited | Binnie v Pacific Health Ltd [2002] 1 ERNZ 438 (CA);Borsboom v Preet PVT Limited [2016] NZEmpC 143;Fagotti v Acme & Co Ltd [2015] NZEmpC 135, (2015) NZELR 1;George v Auckland Council [2013] NZEmpC 179;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Rooney Earthmoving ltd v McTague [2009] ERNZ 240 (EmpC);Space Industries (1979) v McKavanagh [2000] 1 ERNZ 490 (EmpC) |
| Number of Pages | 26 |
| PDF File Link: | 2017_NZERA_Auckland_221.pdf [pdf 402 KB] |