| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 39 |
| Hearing date | 28 Feb 2011 |
| Determination date | 10 March 2011 |
| Member | P R Stapp |
| Representation | G Cain ; C Bate |
| Location | Wellington |
| Parties | Farmers Transport Ltd v Nunn and Anor |
| Other Parties | Pinfolds Transport (2008) Ltd |
| Summary | INJUNCTION – RESTRAINT OF TRADE – Applicant sought urgent injunction restraining respondent acting in any way to breach restraint of trade clause – Order prohibiting publication of commercially sensitive information – First respondent (“N”) accepted $1,000 in consideration of varying employment agreement to include restraint of trade provision – Authority found N not induced to sign variation and had opportunity to seek independent advice – Found applicant had proprietary interest to protect with N going to work for second respondent (“P”) – Applicant claimed N resigned without disclosing leaving to work for P – Applicant claimed N deliberately went to work for P with information about applicant – N denied ulterior motive – Authority found although applicant and P shared work, competitive environment between two companies – Respondents claimed restraint of trade provision unreasonable – Found restraint only applied to rural transport industry within geographical boundary – Found N not prevented from working in wider industry – Found right to work still existed – Found variation enforceable – Found N deliberately breached restraint of trade – Found 12 month restraint unreasonable – Found 3 month restraint would be reasonable – Found given lapse in time, short time remained for injunction to apply – Found geographical area reasonable – Found no evidence to establish breach of non-solicitation part of restraint – Found some risk of unavoidable use of information and soliciting clients – Found N breached non-dealing provision of restraint – PENALTY – Applicant sought penalty against N for breach of employment agreement and against P for inciting, instigating, aiding and abetting N breaching employment agreement – Found $1,000 penalty against N appropriate – Found P knew about restraint of trade provision – Found P failed to test enforceability of restraint – Found P aided and abetted N’s breach and acted deliberately – Found $1,000 penalty against P appropriate – Manager |
| Result | Application granted ; Penalty against N ($1,000)(Payable to Crown) ; Penalty against P ($1,000)(Payable to Crown) ; Costs reserved |
| Main Category | Restraint of Trade |
| Statutes | ERA s161;ERA s162;ERA Second Schedule cl10;Illegal Contracts Act 1970 s8 |
| Number of Pages | 19 |
| PDF File Link: | PDF file not available for download, please contact us to request a copy. |