| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 393/04 |
| Hearing date | 5 Jul 2004 - 9 Aug 2004 (4 days) |
| Determination date | 01 December 2004 |
| Member | R A Monaghan |
| Representation | C Patterson ; J Zhang (in person) |
| Location | Auckland |
| Parties | The Callista Group Ltd v Zhang |
| Summary | BREACH OF CONTRACT - Alleged respondent breached employment agreement by providing software development services, confidential information and intellectual property to third parties without permission - Alleged some conduct occurred during work time - Breach of fidelity by spending work time building software for third parties and cutting and pasting part of applicant's codes and incorporating it into that software - Breach of duty of confidentiality by misusing applicant's licensing software - Other alleged breaches concerned applicant's intellectual property and proprietary rights - Such breaches identical to matters dealt with in contemporaneous High Court proceedings - Should be determined in High Court first - Remaining aspects of liability and quantum of damages reserved - UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Respondent alleged work performed for third parties was helping out friends - No answer to say reward was not money - Applicant entitled to disbelieve respondent's explanation that activities were practice and for applicant's benefit - Evidence discovered after dismissal coloured justification at investigation meeting - Sufficient grounds at time of dismissal to justify dismissal - No personal grievance - Analyst/programmer |
| Result | Application reserved (Breach of contract) ; Application dismissed (Unjustified dismissal) ; Costs reserved |
| Cases Cited | Schilling v Kidd Garrett Ltd [1977] NZLR 243;Thomas Marshall (Exports) Ltd v Guinle [1978] 3 All ER 193;TISCO Ltd v Communication & Energy Workers Union [1993] 2 ERNZ 779 |
| Number of Pages | 15 |
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