| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 95/05 |
| Hearing date | 7 Mar 2005 |
| Determination date | 21 March 2005 |
| Member | A Dumbleton |
| Representation | G Stone ; P Skelton |
| Location | Auckland |
| Parties | Jansen v New Zealand Funds Management Ltd |
| Summary | RESTRAINT OF TRADE - Whether restraint enforceable - Applicant gave three months notice of resignation - Advised was going to work for competitor - Restraint applied to all of New Zealand for three months - Provisions covered businesses competing with respondent - Respondent had proprietary interest to protect - Applicant's employment closely involved in areas of information and ideas which belonged to respondent - Other provisions did not adequately protect respondent's interest - Scope of restraint reasonable - Restraint of no longer than three months achieved public interest balance - No significant power imbalance between parties - Consideration could be inferred - Effective commencement date of restraint was six weeks before end of notice period when applicant ceased all useful fund management work - Three month term should commence from then - Restraint reasonable and valid - BREACH OF CONTRACT - No foundation for claim that was fundamental breach by respondent in way it behaved to application during notice period - UNJUSTIFIED DISADVANTAGE - No unjustified disadvantage regarding the kind of work applicant was given during notice period - Applicant's complaints arose from not being placed on garden leave for three months - Instead, continued to work but not in normal duties - Complaints made about a closet office" trivial and even comical - COMPLIANCE ORDER - Declined to issue compliance order since applicant had not breached provisions nor threatened to do so - Had acted in good faith in bringing matter to Authority to see where he stood - If applicant should commence work with competitor at end notice period respondent could apply with urgency to Authority - Non-publication order regarding specified document produced in evidence - No one apart from respondent management may disclose to any person that document or anything in it - Senior investment manager for income funds" |
| Result | Question answered in favour of respondent ; Application for compliance order declined ; Application dismissed (Breach of contract) ; Application dismissed (Unjustified disadvantage) ; Orders accordingly ; Costs reserved |
| Statutes | ERA s137;Illegal Contracts Act 1970 s8 |
| 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 |
| Number of Pages | 7 |
| PDF File Link: | aa 95_05.pdf [pdf 42 KB] |