| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 147/04 |
| Hearing date | 4 Feb 2004 - 19 Apr 2004 (2 days) |
| Determination date | 27 April 2004 |
| Member | L Robinson |
| Representation | D McLeod ; DD Rishworth |
| Location | Auckland |
| Parties | Waikanae Holdings (Gisbourne) Ltd v Smith |
| Summary | BREACH OF CONTRACT - Applicant sought damages for breach of restraint of trade clause - Alleged respondent provided services to key client immediately after resignation - No breach of clause of agreement since respondent had not subsequently entered into contract of employment - Alleged breach of duty of fidelity - Whether respondent approached applicant's client - Respondent's evidence preferred - No breach of duty of fidelity - Claim in damages failed - OTHER MONIES - Applicant advanced $6,586 to respondent for airfares to bring family to New Zealand - Respondent paid back $1,000 - Applicant paid $5,000 as holiday pay in advance - Inappropriate to determine claim as set-off against claim for wages - Monies due and owing - Overpayment of wages due and owing - No interest payable on amounts - PENALTY - Penalty sought for breach of duty of fidelity - Claim failed - COUNTERCLAIM - ARREARS OF WAGES AND HOLIDAY PAY - On termination applicant did not pay final wages or holiday pay because of debts respondent owed - Holiday pay of $7,118 due and owing - Final pay due and owing - No interest payable on amounts - PENALTY - Not in interests of justice to impose penalty against applicant - Hydraulics technician |
| Result | Application dismissed (Breach of contract and penalty actions) ; Application granted (Other monies owing)($5,586)(Airfares) ; ($5,000)(Loan advances) ; ($804.75)(Overpayment of wages) ; Counterclaim granted (Arrears of wages)($428.15) ; Arrears of holiday pay ($7,118.35) |
| Statutes | Holidays Act 1981 s4 |
| Cases Cited | Interchem Agencies Ltd v Morris & Anor [2002] 2 ERNZ 256;Korbond Industries Ltd v Jenkins [1992] 1 ERNZ 1141;Max Tarr Electrical Contractors Ltd v Dixon [2000] 2 ERNZ 281;Morris v Interchem Agencies Ltd [2003] 1 ERNZ 93;Ongley Wilson Real Estate Ltd t/a Manawatu First National v Burrows [1999] 1 ERNZ 231;Ongley Wilson Real Estate Ltd t/a Manawatu First National v Burrows [1998] 3 ERNZ 759;Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243 |
| Number of Pages | 11 |
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