Worker-Boss “betrayal” like marriage cheating.

Two cases I have been involved in last month remind one of the obligations workers have to their bosses. Lets look at them – they are instructive. Incidents have been disguised a bit to protect confidentiality.

The first: concerned a local garage who hired an apprentice. I was acting for the boss. He prided himself on his workmanship and training his apprentices very diligently. Some topped national Motor Trades exams.

This young apprentice was hard up for money. He went on his Christmas holidays as usual. The workshop was flat out and there was a juggle to ensure staff were rostered on to keep up with the Christmas rush. The apprentice returned from his out of town holiday early. He called into the workshop to see his mates. It was obvious they were flat out. He then surprisingly went and worked out the last week of his holiday with a nearby garage that was short of staff.

The boss got to hear of this and felt betrayed. On the apprentices return to work he was asked why he had worked for a competitor. The apprentice could offer no explanation apart from the fact he had to clear some debts and he was sorry he had upset his employer. The boss terminated this young mans employment.

The apprentice got another job. He then went to a lawyer, who got granted $1,500 worth of legal aid (a strange use of tax payers money!) to mount a personal grievance that the apprentice had been unjustifiably dismissed and demanded thousands of dollars compensation. It ended up in mediation in the Employment Tribunal and was resolved by each side hearing the others point of view and expressing regret how things ended.

Judge made “Common Law” underpins “Statute Law” that Parliament makes such as the Employment Contracts Act 1991. Common Law requires workers to be faithful to their employer. This is called the duty of fidelity. It’s a bit like marriage, if one cheats the marriage may end! Working for a competitor of the boss, even in ones own time can be seen in law as cheating. Commerce relies on workers not directly competing with their employers, moon lighting, or doing perk jobs and the like without the bosses approval. Such “unfaithful’ actions can undermine the implied legal duty of “trust and confidence” needed in employment relationships.

The second case: involved a carver on a Marae. I was helping the worker in this case. (That’s the great thing about industrial relations work; one day – gamekeeper, the next – poacher!)

The carver along with others was engaged to make quality hand made “pieces” or souvenirs for the tourist trade. He was asked to come up with an idea for the America’s cup challenge. He had a flash of brilliance and made a prototype model for a great keepsake. The Marae reckoned that as he came up with this in paid time the concept belonged to them, held onto the prototype and started to register it with a quality brand. The carver argued “no way”. It was a special one off job, he had thought it up outside work, and the rights, branding and any commissions belonged to him if the souvenir was to be manufactured.

In simple terms the first owner of a copyright, under the Copyright Act 1994, is the author or in this case the maker of the “piece”. However, if the item is made in the course of ones employment the ownership reverts to the boss, or if commissioned to the person who commissioned the work. The Marae actually had the stronger argument that the work belonged to them.

Anyhow, the Marae and the carver settled the matter. The carver got the prototype back. The ‘take’ was solved in a pragmatic way without involving the legal system. The carver can go ahead with making the piece if he wishes, and the Marae will lease him the space to do the work. It is good for the atmosphere of the Marae that carvers work on site, and if the concept takes off – which it should- then the Marae shares the mana and probably some of the proceeds.

Although ideas are not subject to copyright, as soon as an idea is put into “form”- plans, prototypes, or published and the like, and this is done in course of ones employment, then the copyright is likely to belong to the boss.

It is useful to spell out simple fidelity, invention and copyright obligations in employment contracts. Many people have a “gut feel” such obligations exist but don’t know their practical extent.

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