| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 109/07 |
| Hearing date | 10 Jul 2007 |
| Determination date | 03 September 2007 |
| Member | P Cheyne |
| Representation | M Withers ; S Wilson, S Townsend |
| Location | Christchurch |
| Parties | McMillen v Pilates Plus Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant employed by pilates studio while his wife ran a gym -Respondent dismissed applicant when concluded he was involved in gym and in breach of terms of employment agreement and duty of fidelity - Previous owner of pilates studio aware of wife’s business but did not consider it a conflict of interest - Nothing in information available to respondent to cast doubt on applicant’s statement not actively involved with wife’s business - Nature of business had not changed since first owner considered no competition - No evidence limited involvement in gym adversely affected performance of duties for respondent - No evidence of applicant abused position to advantage of gym, or of any risk to respondent’s business - No breach of duty of fidelity - No breach of express or implied terms so no basis for dismissal - Dismissal unjustified - Remedies - Lost wages attributable to establishment of own business rather than dismissal - Unjust to require respondent to subsidise establishment of competing business - COUNTERCLAIM - Claim for penalty for breach of good faith could not succeed as no attempt to relate facts to s4A Employment Relations Act 2000 - No breach of employment agreement arising from applicant’s dealing with client - Counterclaims dismissed - Non publication order relating to personal evidence regarding client - Pilates instructor |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Counterclaims dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s133(b) |
| Cases Cited | Tisco v Communication and Energy Workers’ Union [1993] 2 ERNZ 779 |
| Number of Pages | 12 |
| PDF File Link: | ca 109_07.pdf [pdf 42 KB] |