Duty Of Fidelity Part 2 Notes

Labour Law Lecture 14th April 2011: Duty of Fidelity Carries on after employment - duty not to disclose confidential information. Coincides with equitable/tortious duties. General test is whether the conduct in question would be regarded by a person of ordinary honesty as dishonest, or not acting in good faith. University of Canterbury, one of the secretarial staff was sacked for taking an envelope. No secret profits, no taking over of business opportunities, no abuse of your position to the employer's detriment, no taking of bribes, no taking of kickbacks, failing to account for the employer's property, stealing property. Another big aspect of the duty of fidelity is no competition with the employer. No competing with the employer while you are employed by that employer. After employment is over then it's fine, unless there is a restraint of trade clause in effect. Aren't allowed to compete in their spare time. Seems unfair for employees that are skilled but don't get paid much. Why shouldn't they be able to make a few bucks on the side by using their skills in their spare time. Can't compete with an employer or work with an employer if there's any potential to harm the employers business. English case, manufacture of hearing aids. Worked on the side for competition as well - found to have breached duty of fidelity, danger of revealing confidential information of primary employer. Communication and Energy Workers Union v Tisco Ltd: Paul doesn't entirely agree with the Court of Appeal. CA judgement doesn't have as good discussion as the Employment Court. - Okay to work in your spare time as long as you don't breach your duty of fidelity or undermine the employers business - Low level employee, Riley - worked for Tisco servicing television sets and other electronics. Works for himself in his spare time and buys televisions, fixes them, and then sells them at auctions. On the face of it it looks like he's engaged in a completely different enterprise, and not in competition with Tisco. Tisco entirely concerned with repair, whereas Riley was buying fixing and selling televisions. No cross-over in the business. People who already had televisions already had service contracts to fix with Tisco, whereas Riley was dealing with a different market. Tisco found out about what Riley was doing through someone telling on him. Employment Court went through three possible sources of a duty of fidelity: 1. Express terms of the contract. There were work rules that forbade competition for servicing equipment without express permission. EC held that express term didn't forbid what Riley was doing - not competition with servicing, as Riley was trading. 2. Term implied in fact that prevented Riley from spare-time business. EC applied the BP test

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