| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 45/10 |
| Hearing date | 24 Nov 2009 - 18 May 2009 (2 days) |
| Determination date | 03 February 2010 |
| Member | R A Monaghan |
| Representation | AS Menzies ; A Hope |
| Location | Auckland |
| Parties | Provida Foods Ltd v Davidson and Anor |
| Other Parties | Bidvest (NZ) Ltd t/a Crean Food Service |
| Summary | ARREARS OR WAGES – First respondent sought repayment of deductions made from final pay and payment in respect of 30 days’ long service leave – Amount owed not disputed except for interest – Authority found payment made – Interest payable – RESTRAINT OF TRADE – Applicant argued respondent breached restraint of trade provision in parties’ written employment agreement – Second respondent initially identified as competitor – Applicant relied on confidential information about suppliers and customers which first respondent had access to – Restraint of trade not enforced against other employees later employed by second respondent – Found flexible approach taken in relation to restraint of trade and risk assessed on individual basis – Found in those situations no breach of provision and accommodations made in respect of new employment – First respondent argued applicant waived restraint of trade when told about employment offer – First respondent claimed acted in reliance on waiver in accepting offer from second respondent – Applicant accepted resignation and stated restraint of trade would not be waived – Found no waiver of restraint – Found respondent sought to commence employment with competitor immediately and within same city – Found breach of restraint of trade – Found respondent on notice of breach – PENALTY – Applicant sought penalty for breach and for inciting, instigating, aiding or abetting breach of restraint of trade – $1,000 penalty payable to applicant – Found second respondent on notice of restraint of trade – Respondent answered advertisement of vacancy – Found second respondent did not incite or instigate breach of restraint – Second respondent took risk in reliance on legal advice – Found second respondent aided and abetted respondent’s breach – $1,000 penalty payable to applicant – COUNTERCLAIM – Respondent sought penalty for breaches against Wages Protection Act 1983 – Deductions made on basis of respondent electing to disregard the restraint – Found applicant not entitled to act in that way – No order for penalties due to failures to mention claim at proper times – Shift supervisor |
| Result | Application granted ; Penalty payable to applicant ($1,000)(breach of restraint of trade) ($1,000)(aiding and abetting breach of restraint of trade) ; Interest (4.8%) ; Costs reserved |
| Main Category | Restraint of Trade |
| Statutes | ERA s133;ERA s134;ERA s134(2);ERA s136(2);ERA Second Schedule cl11;Wages Protection Act 1983 |
| Cases Cited | Credit Consultants Debt Services NZ Limited v Wilson (No 3) [2007] ERNZ 252;Fuel Espresso Ltd v Hsieh [2007] ERNZ 60 |
| Number of Pages | 13 |
| PDF File Link: | aa 45_10.pdf [pdf 40 KB] |