| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 167/09 |
| Hearing date | 1 Oct 2009 |
| Determination date | 05 October 2009 |
| Member | J Crichton |
| Representation | G Stone ; A Shaw, A Shakespeare |
| Location | Christchurch |
| Parties | James & Wells Patent and Trade Mark Attorneys v Snoep |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) - Applicant sought interim injunctive relief, alleging respondent breached express and implied terms of individual employment agreement (“IEA”) - Respondent was salaried partner in applicant firm – Prior to becoming partner, respondent salaried employee with IEA containing restraint of trade – Respondent sought removal to EC based on important question of law and public interest grounds – Applicant opposed removal - Respondent’s first alleged important question of law whether person can be partner and employee of same firm at same time and thus whether IEA entered into when person was only employee continued to apply after person becomes partner of firm – Respondent’s second alleged important question of law was enforceability of restraint where party restrained was labouring under false belief as to efficacy of restraint - Applicant argued case essentially standard restraint of trade argument which Authority dealt with regularly, and Authority must simply apply test of whether applicant employee, then whether restraint applied and was breached – Authority found relationship between parties at time of termination was central to case, with secondary issue enforceability of restraint of trade – Authority understood old common law position was person could not be both partner and employee in firm – Authority found question of law whether employee may also be a partner and consequences of that juxtaposition for restraints of trade executed when employee was just an employee – Found important question of law due to its uniqueness and potential to affect large numbers of professional firms and practitioners in number of professions in country – Found respondent’s second alleged ground for removal of enforceability of restraint not unique or unfamiliar when taken without other important legal issue – However, found most useful to parties and best use of employment institutions’ time to remove whole of matter – Found no serious question of disputed fact making Authority’s inquisitorial process appropriate - Found was essentially legal argument to be dealt with in courtroom - Found appropriate to exercise discretion to remove matter to EC – Matter removed to EC |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;ERA s178;Partnership Act 1908 |
| Cases Cited | Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;NZ Amalgamated Engineering, Printing and Manufacturing Union Inc v Carter Holt Harvey Ltd [2002] 1 ERNZ 74 |
| Number of Pages | 5 |
| PDF File Link: | ca 167_09.pdf [pdf 19 KB] |