| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 347/07 |
| Hearing date | 2 Nov 2007 |
| Determination date | 05 November 2007 |
| Member | A Dumbleton |
| Representation | D Alderslade ; H Waalkens QC |
| Location | Auckland |
| Parties | Lee v Air New Zealand Ltd |
| Summary | DISPUTE – Restraint of trade – Applicant sought declaration regarding interpretation, application, and operation of employment agreement – Applicant senior marketing manager at respondent – Non-competition clause stated could not be employed or involved in any business in competition with respondent for three months in NZ or Australia following termination of employment – Applicant accepted general manager marketing position based in Australia with airline – Employment to commence before expiry of purported non-competition period - Agreement also contained confidentiality clause – Applicant claimed restraint unnecessary given bound by ongoing confidentiality provisions, and new employer's assertions would observe restrictions in giving applicant work, and would not require her to breach confidentiality obligations to respondent – Applicant clearly had access to, and regularly received highly confidential information – Involved in respondent’s strategic planning to defend its business against new airlines in domestic market – New employer identified by respondent as highly likely to compete for airline business – Respondent had “trade secrets” in form of highly sensitive confidential information - Secrets known to applicant in course of her work – Respondent demonstrated reasonableness of clause at time agreement entered into - Applicant believed position would be available at end of non-competition period, and her skills and experience made applicant highly employable even outside aviation industry - Difficult for Authority and respondent to police “ring fencing” arrangements and undertakings, and not practicable in circumstances – Notwithstanding confidentiality provisions and undertakings to comply with them, was reasonable non-competition clause applied – Applicant prevented from becoming employed or involved in any capacity with any business competing with respondent until end of non-competition period |
| Result | Question answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Cases Cited | Broadcasting Corporation of New Zealand v Nielsen (1988) 2 NZELC 96,040;DB Breweries v Marshall [1994] 1 ERNZ 98;Herbert Morris Ltd v Saxelby [1916] 1 AC 688;Kone Elevators Pty Ltd v McNay unreported, JJ Meagher, Sheller and Cole, 19 March 1997, CA 40113/97;Littlewoods Organisation Ltd v Harris [1978] 1 All ER |
| Number of Pages | 13 |
| PDF File Link: | aa 347_07.pdf [pdf 46 KB] |