Little battler beats multinational

KASHKA TUNSTALL
Last updated 05:00 21/12/2013
Sandi Horsburgh
NICK REED/ Fairfax NZ

WINNER: Sandi Horsburgh was made redundant twice through the same company, then fought against the decision - and won.

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A Hamilton woman has a won a "David and Goliath" battle in a dispute with her former employer.

Audiologist Sandi Horsburgh was employed by Bay Audiology, then National Hearing Care, both brands that fall under the umbrella of multinational Italian company Amplifon.

Ms Horsburgh worked for her employer for close to 10 years before she was made redundant in May.

It was the second time the single mother had been issued notice of redundancy by the company in a 12-month period.

Her first job at Bay Audiology was disestablished in May of last year.

She was then offered a new job at the National Hearing Care clinic on Victoria St, where she signed a new employment agreement. A year later the clinic closed after the offices were scheduled for demolition.

Worried about her financial stability, Ms Horsburgh immediately put her house on the market and moved in with her daughter.

After failing to find a new job, she decided to start up her own small audiology business, The Ear Room, in Queenwood Village in September.

Her daughter set up a Facebook page for the business and she sent out flyers to promote it.

But three days before the shop was due to open, Amplifon contacted Ms Horsburgh to tell her she was in breach of restraint of trade and non-solicitation clauses written into her contract - which were double the length of those in her initial Bay Audiology contract - and applied to a 10-kilometre area around her last place of work.

The contract also stipulated a non-solicitation period of 12 months, preventing Ms Horsburgh from soliciting Amplifon employees, clients and potential clients, which Amplifon believed the Facebook page and flyers breached.

Ms Horsburgh said the new conditions had alarmed her when she first read them but in "defeated desperation and relief" that she still had a job, she signed the contract. Despite the clauses, she believed she was free to start up The Ear Room four months after her redundancy was issued, as the clinic she was working at had closed.

"I was so upset, I was just concentrating on how I was going to survive," Ms Horsburgh said.

"I just felt like my security had been taken away from me."

The nearest Amplifon-owned clinic is 7km from her current premises.

Amplifon applied to the Employment Relations Authority for a declaration that the restraint of trade in Ms Horsburgh's contract was enforceable and asked for damages to be paid for a breach of contract. Ms Horsburgh countered by questioning the reasonableness of the covenants.

"I've never been on unemployment [benefits] and I've got a right to work.

"I was born here and I have lived here all my life, and that's another reason I didn't want to back down," she said.

"It took away my security, my self-esteem and the loss of income from my business for the last three months."

A lengthy legal battle followed, with an unsuccessful attempt at mediation forcing the case to go before the authority last month.

The authority ruled the employment agreement was void and unenforceable, saying there was "an inequality of power" when Ms Horsburgh entered into the contract and she accepted "less favourable terms . . . to work to support herself".

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"It has been a big undertaking for her to start her own business and one of the drivers for that was her fear that if she was an employee, then her employer could always terminate her employment," the decision said.

"She set up her own business to avoid that continuing to happen in her future."

Ms Horsburgh said the dispute had cost her business hundreds of thousands of dollars as she waited for the case to be resolved. It had cost her upward of $10,000 in legal fees.

The Employment Relations Authority awarded her costs of $4500 but Ms Horsburgh is unhappy the case went as far as it did.

"My view is why did it get to court if it is so unenforceable," she said.

"How can a company make you redundant that many times and then turn around and try and tell you that you can't work, advertise, use your name or your face," she said.

When the Waikato Times contacted Amplifon through Bay Audiology, representatives declined to comment.

- Fairfax Media

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