| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 248/04 |
| Hearing date | 4 Aug 2004 |
| Determination date | 09 August 2004 |
| Member | A Dumbleton |
| Representation | I Davidson ; R Harrison |
| Location | Auckland |
| Parties | Burnham v Amcor Kiwi Packaging, a Division of Amcor Packaging (New Zealand) Ltd |
| Summary | RESTRAINT OF TRADE - Applicant resigned and entered employment with competitor - Expressly prohibited by restraint of trade provisions in employment agreement - Whether restraint of trade enforceable - No actual or inferred consideration for restraint of trade provisions - Applicant's latest role with respondent not covered by restraint because not in contemplation at time of agreement - Scope of association with competitors prohibited by restraint too wide - Prevention on shareholding anti-investment rather than trade restriction - Trade secrets adequately protected by express confidentiality provisions - Restraint of trade provisions unreasonable and unenforceable - UNJUSTIFIED DISADVANTAGE - Retraction of decision to allow applicant pay in lieu of working out notice and alternative imposition of garden leave unreasonable - Unjustified disadvantage in employment - Suffering minimal - No compensation awarded - COSTS - Investigation meeting less than one day - Unthinking use of standard restraint of trade provisions justified reasonable contribution to applicant's costs - Account manager |
| Result | Applications granted ; Costs in favour of applicant ($1,800) |
| Statutes | ERA s157(3);ERA Second Schedule cl15 |
| Cases Cited | Bates v Gates (1986) 1 NZELC 95,269;Brown v Brown [1981] NZLR 484;Fletcher Aluminium Ltd v O'Sullivan [2001] ERNZ 46;M A Watson Electrical Ltd v Kelling [1993] 1 ERNZ 9;Prendergast v Davies unreported, Potter J, 1 August 2002, CP 685-SW01 |
| Number of Pages | 8 |
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