| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 32/10 |
| Hearing date | 13 Feb 2009 |
| Determination date | 25 January 2010 |
| Member | D King |
| Representation | S Langton ; C Lewis (in person), S Fox |
| Location | Auckland |
| Parties | Cook Executive Recruitment (2005) Ltd v Lewis & Anor |
| Other Parties | New Zealand Tertiary College Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed first respondent breached terms of employment agreement (“EA”), obligation of good faith, and implied obligations of loyalty and fidelity – Applicant claimed first respondent failed to promote applicant’s interests, failed to keep confidential information, took on other business during employment in direct competition with applicant, and breached contractual restraint of trade – First respondent provided recruitment services to second respondent before employed by applicant – First respondent brought second respondent as client when joined applicant – Applicant discovered invoices issued with first respondent’s name and personal bank account details for services provided to second respondent – Applicant discovered further invoices to second respondent following forensic search of first respondent’s computer – First respondent argued work completed for second respondent not work for applicant as applicant’s fees greater than what second respondent willing to pay – First respondent dismissed – First respondent did not challenge dismissal or validity of restraint – Applicant concerned second respondent aided and abetted first respondent – Authority accepted second respondent’s evidence that told by first respondent applicant agreed to provision of services – Authority found first respondent breached terms of EA – Found first respondent contacted second respondent in breach of restraint – Found first respondent breached implied duties of loyalty and fidelity – Found first respondent under obligation to disclose second respondent’s fee issues – REMEDIES – Account of profits – Authority ordered first respondent to pay applicant $12,100 – PENALTY – Authority found breach of good faith deliberate, serious, and sustained – Authority ordered maximum penalty of $5,000 be paid to applicant – Associate director (Recruitment role) |
| Result | Application granted (Breach of contract) ; Account of profits ($12,100) ; Penalty ($5,000) (Payable to applicant) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4(1);ERA s4A;ERA s133(1)(a) |
| Number of Pages | 7 |
| PDF File Link: | aa 32_10.pdf [pdf 20 KB] |