| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 146 |
| Hearing date | 5 Sep 2011 |
| Determination date | 29 September 2011 |
| Member | M B Loftus |
| Representation | M Singleton ; P Shaw |
| Location | Christchurch |
| Parties | Multi Media Communications Ltd v McClintock |
| Summary | INJUNCTION – RESTRAINT OF TRADE – Applicant sought interim injunction to prevent respondent from continuing in new employment as breached employment agreement (“EA”) – Respondent claimed only went to one management meeting and was never privy to sensitive commercial information – Applicant claimed was first company to develop cable technology – EA included non-solicitation clause for six months within 10 kilometre radius and prohibited respondent from using or disclosing any confidential information after employment ended – Respondent claimed during last five months of employment worked for subsidiary of company responsible for installation of cable network (“E”) – Applicant claimed employees including respondent were located at E’s office – Applicant claimed work performed by employees at E was highly specialised, only limited number of companies had necessary expertise and E’s staff did not have capability – Respondent claimed only performed work E would normally have completed in-house but was unable to after unmanageable volumes due to earthquake – Applicant accepted E’s employment offer after workload diminished and commenced work after month’s notice – New employer’s senior manager claimed tasks allocated to applicant quite distinct from applicant’s role when employed by respondent – Applicant claimed serious question to be tried as applicant signed EA and restraint reasonable – Applicant claimed had proprietary interest that required protection as respondent could not have accessed information but for employment with respondent – Applicant claimed disclosure would potentially cause respondent significant economic loss and disadvantage and respondent remaining in industry increased chance of disclosure – Applicant noted E large organisation with significant number of resources – Respondent claimed non-solicitation clause did not apply as E not business that offered same service as applicant or alternatively that restraint unreasonable – Authority found non-solicitation clause prevented respondent from accepting approaches from known client and respondent accepted E’s offer of employment – Found therefore applicant had arguable case – Found unable to accept that E not business that offered same service and clause could have some applicability – Found while applicant’s evidence about whether had proprietary interest not convincing further evidence could be introduced at substantive hearing and therefore applicant had weak but arguable case – Found difficult to conclude on reasonableness of restraint – Found unable to conclude whether alternate remedy – Found overall had sparse information about proprietary interest applicant sought to protect and evidence respondent would suffer substantial inconvenience if application granted – Found balance of convenience and overall justice favoured respondent - Application for interim injunctive relief dismissed - Lead Technician |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Cases Cited | Fuel Espresso Ltd v Hsieh [2007] 2 NZLR 651;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490;Green v Transpacific Industries Group (NZ) Ltd [2011] NZEMPC 6;Hally Labels Ltd v Powell [2011] NZEMPC 63 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Christchurch_146.pdf [pdf 47 KB] |