| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 236/06 |
| Hearing date | 22 Dec 2005 |
| Determination date | 07 July 2006 |
| Member | L Robinson |
| Representation | H Waalkens QC, A Caisley, D France ; C Toogood QC, C Wright, M Whisker |
| Location | Auckland |
| Parties | Finnigan v Hanover Group Ltd |
| Summary | COMPLIANCE ORDER - Applicant sought compliance with Deed that settled alleged personal grievance – Respondent claimed applicant breached terms of Settlement Deed and sought damages – Authority had jurisdiction to consider whether Deed breached and if appropriate, award remedies for breach of contract - Deed stated applicant would resign in five months and be paid $700,000 plus outstanding holiday pay and expenses – Parties agreed that until termination date applicant would continue duties with respondent, including fiduciary obligations – Applicant resigned as agreed but did not receive payment – Respondent alleged numerous breaches by applicant enabled it to cancel Deed pursuant to Contractual Remedies Act 1979 – Applicant had not breached Deed by entering into employment relationship with new employer after resignation, or by negotiating for that new employment while with respondent – Respondent had removed applicant’s authority to act in particular transaction so his actions could not now be said to amount to breach of duty – Applicant had acted contrary to duty to act in respondent’s best interests by forwarding work opportunities to new employer but breach was inconsequential and respondent suffered no loss – Breach was not of an essential term that entitled respondent to cancel contract – Authority unconvinced respondent actively considered purchase of third party company so unable to conclude applicant took advantage of opportunity that belonged to respondent – Applicant acted appropriately by refusing to attend board meetings given negotiations for new employment – No evidence applicant involved in competitive property development activity in breach of duty to respondent – Deed not regarded as conventional employment relationship and did not incorporate terms usually implied by common law – Respondent had affirmed Deed after alleged breaches and must be taken to have waived legal rights in relation to them – Essential quality of deed was securing resolution of alleged personal grievance, not purchasing applicant’s faithful service – Applicant had not breached terms of Deed such that respondent permitted to cancel it or receive damages – Applicant entitled to have terms of Deed enforced – Interest payable on total sum from resignation to date of payment – Non-publication order in respect of evidence in relation to two companies and certain parts of applicant's evidence - Chief Executive Officer |
| Result | Application granted ; Compliance ordered ; Interest (9%) ; Costs reserved |
| Statutes | Contractual Remedies Act 1979 s7(3)(b);Contractual Remedies Act 1979 s7(4);Contractual Remedies Act 1979 s7(5);ERA s149;ERA s161(1)(r) |
| Cases Cited | Kerr v Associated Aviation (Wellington) Ltd [2005] 1 ERNZ 632 |
| Number of Pages | 10 |
| PDF File Link: | aa 236_06.pdf [pdf 151 KB] |