| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 1/08 |
| Hearing date | 10 Oct 2007 |
| Determination date | 07 January 2008 |
| Member | R A Monaghan |
| Representation | T Skinnner ; P Akbar |
| Location | Auckland |
| Parties | Smith v Engineering & Technical Recruitment Ltd & Anor |
| Other Parties | Career Engineer Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Applicant given final warning for performance and failure to take responsibility for actions - Performance issues continued and two weeks later dismissed for failure to effect remedial action - Warning required satisfactory client performance within a month but other timeframes not clear - Statement further similar behaviour would be seen a gross misconduct went too far and confused misconduct procedures with performance - Circumstances not sufficient to demonstrate failure to improve sufficient to justify dismissal - Dismissal unjustified - Remedies - Applicant’s attitude contributory conduct - Respondent’s later complaint about applicant to recruitment industry body not taken into account when assessing remedies - RESTRAINT OF TRADE - PENALTY - Counterclaim After dismissal applicant set up business in direct competition with respondent which breached restraint - Business dealings with respondent’s clients fell within scope of restraint - Breached non-solicitation clause by advertising services to respondent’s clients and seeking to get former co-worker to join new company - Remedies - Normally breach of restraint would warrant significant penalty, but Authority took into account unjustified dismissal and resulting lack of income which led applicant to grasp opportunity to set up own business - No penalty awarded for setting up company or sending emails advertising new business - However, applicant took inappropriate advantage of approach made to him by one of respondent’s client in capacity as respondent’s employee - Penalty of $750 - Approach to former co-worker also warranted penalty of $1,000 - Respondent also sought penalty against applicant’s company for aiding and abetting breaches - Applicant prime mover behind his company and actions already given rise to penalties, no penalty awarded against company - Recruitment consultant |
| Result | Application granted ; Reimbursement of lost wages ($2,500) ; Compensation for humiliation etc ($3,500) ; Counterclaim granted ; Penalty ($1,750)(Payable by applicant to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s134(2) |
| Cases Cited | Credit Consultants Debts Service v Wilson (No 2) [2007] ERNZ 205;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 23 |
| PDF File Link: | aa 1_08.pdf [pdf 68 KB] |