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TVI, a registered social worker, brought claims against his former employer (referred to as "the Trust") and the Social Workers' Registration Board (the Board) following the Trust's mandatory report to the Board under s 47A of the Social Workers Registration Act 2003 (the SWR Act). The central legal questions were whether the Authority had jurisdiction over any of the applicant's claims, given the s 47A statutory immunity, the terms of a certified Record of Settlement (RoS), and the timing of the mandatory report relative to the RoS. The Authority found it had no jurisdiction over any of the applicant's claims against the Trust, with all claims dismissed on multiple overlapping grounds.

Applicant: TVI (employee/registered social worker)
Respondent: The Trust (first respondent/employer); Social Workers' Registration Board (second respondent/regulatory body)

Applicant: Allan Halse, advocate
Respondent (First): Rani Amaranathan, counsel
Respondent (Second): Isabella Cronin-Stone and Renee Butler, counsel

TVI was employed by the Trust as a registered social worker from 1 September 2024. From November 2024, the Trust had concerns about the applicant's conduct, including his whereabouts and missing clinical notes; by December 2024, two serious complaints alleging sexual assault and coercion had been received against him. On 17 December 2024, the Trust's CEO made a mandatory report to the Board under s 47A of the SWR Act based on those complaints. On 20 December 2024, the parties signed a Record of Settlement (RoS) — certified on 24 December 2024 — which included a clause stating "The Employer agrees not to make a report to the Social Workers Registration Board" and a full and final settlement clause covering all claims arising from the employment relationship. The Trust attempted to withdraw the s 47A report after signing the RoS but the Board declined, continuing its regulatory process. The applicant subsequently filed a statement of problem claiming unjustified disadvantage, breach of good faith, breach of the RoS, and seeking penalties, on the basis that the Trust's making of the s 47A report breached its obligations. A prior determination ([2026] NZERA 341) had already dismissed all claims against the Board for lack of jurisdiction.

1. Whether the Authority had jurisdiction over claims against the Trust — specifically whether s 47A(4) of the SWR Act barred the applicant's claims arising from the mandatory report — Status: Established (s 47A(4) immunity applies; claims barred) (paras [63]-[74]).

Section 47A(4) of the SWR Act provides that no civil, criminal, or disciplinary proceedings may be taken against a person who makes a mandatory s 47A report, unless the report was made in bad faith. An ERA application is a civil proceeding, so the immunity is engaged unless bad faith is established. Bad faith requires conduct such as dishonesty, malice, knowing falsity, or reckless disregard for truth. The Authority found the applicant produced no evidence of bad faith: the Trust's CEO had received two written complaints, personally interviewed one complainant (found credible), and was aware one complainant had reported to the Police. The Authority accepted there was a sufficient evidential basis for the report and rejected the argument that the absence of a formal investigation prior to reporting constituted bad faith. The Authority also held that ongoing settlement negotiations do not establish bad faith for the purposes of a mandatory s 47A report, and that the RoS clause purporting to prevent the report could not override the statutory obligation. As all of the applicant's claims arose from the mandatory report, s 47A(4) barred all of them.

2. Whether the Protected Disclosures (Protection of Whistleblowers) Act 2022 (PDA) gave rise to any cognisable claim — Status: Dismissed (paras [54]-[62]).

The SoP referenced the PDA and alleged that the Trust's actions constituted retaliation for a protected disclosure. However, the Authority found no evidence that any protected disclosure had actually been made to either respondent. The applicant's affidavit and advocate's submissions did not identify any protected disclosure, and the matters referred to in the SoP (the applicant's personal circumstances and registration) did not meet the definition of "serious wrongdoing" under s 10 of the PDA. No personal grievance claim under s 103(1)(k) of the Act (retaliation for whistleblowing) or under s 110B of the Act was properly before the Authority.

3. Whether the unjustified disadvantage grievances raised prior to 20 December 2024 could be pursued — Status: Dismissed (paras [75]-[78]).

The alleged unjustified disadvantage grievances arising during employment were raised on or before 18 December 2024 and were specifically, fully, and finally settled by the RoS. Personal grievance processes under the Act are only available to parties in an employment relationship; the employment ended on 20 December 2024. Any new unjustified disadvantage grievance raised by the SoP (served 28 October 2025) was raised after the employment relationship had ended, so there was no employment relationship on which to base the claim.

4. Whether the applicant could pursue breach of good faith and/or personal grievance claims arising after the employment ended on 20 December 2024 — Status: Dismissed (paras [76], [134]-[138]).

Citing Idea Services Ltd v Baker [2012] NZEmpC 112, the Authority confirmed that a breach of good faith claim requires the parties to be in an employment relationship when the claim arises. The employment ended on 20 December 2024, so no post-employment breach of good faith or unjustified disadvantage claims were available. Any prejudice flowing from the Board's subsequent regulatory processes also could not found an unjustified disadvantage claim against the Trust after that date.

5. Whether the RoS barred the applicant from pursuing breach of good faith and unjustified disadvantage claims against the Trust — Status: Established (claims barred by RoS) (paras [89]-[133]).

Section 149(3)(b) of the Act provides that, except for enforcement purposes, no party may bring the terms of the RoS before the Authority. The Authority applied the contractual interpretation principles in Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 and Crossen v Yangs House Ltd [2021] NZEmpC 102. Clause 8 of the RoS — "full, final and binding settlement of all claims the parties may have" — was found to be clear and unambiguous. Following Maharaj v Wesley Wellington Mission Inc [2016] NZEmpC 129, Kaipara District Council v McKerchar [2017] NZEmpC 55, Crossen, and Alkazaz v Deloitte (No 3) Ltd [2022] ERNZ 829, the Authority held the language was broad enough to compromise all actual and potential future claims, including those not yet identified at the time of settlement. The presence of a non-disparagement clause further evidenced an intention for comprehensive settlement.

6. Whether the RoS was breached by the Trust making the mandatory s 47A report on 17 December 2024 (before the RoS existed) — Status: Dismissed (paras [79]-[88], [135]-[136], [143]-[144]).

A record of settlement cannot be breached retroactively. The s 47A report was made on 17 December 2024, three days before the RoS was signed (20 December 2024) and seven days before it was certified (24 December 2024). Following Wilson v Manurewa East School Board [2024] NZERA 447, the RoS would have needed express retroactive language to impose obligations with respect to acts already taken. Clause 4 used prospective language ("agrees not to make a report") and imposed no backward-facing obligation. Accordingly, making the report before the RoS existed could not constitute a breach of it.

7. Whether the Trust's failure to withdraw the mandatory s 47A report after the RoS was certified constituted a breach of the RoS — Status: Dismissed (paras [139]-[142]).

Clause 4 of the RoS did not expressly require withdrawal of a report already made. Section 47A of the SWR Act does not provide for withdrawal of a mandatory report once made, and the Board refused to close the matter regardless. Any dispute about what clause 4 required and whether the Trust's steps (attempting to withdraw the report and declining to provide further information to the Board) were sufficient would be an enforcement/penalty issue under s 149 of the Act, not a basis for breach of good faith or personal grievance claims. The Authority found no breach was established or capable of being established.

8. Whether the Authority had jurisdiction to award the remedies sought — Status: Dismissed (paras [145]-[149]).

The only remedies available for a breach of a certified RoS are a compliance order and a penalty under s 149(4) of the Act. The Authority had no jurisdiction to award distress compensation, lost earnings, retraction of the s 47A report, cessation of the Board's investigation, reinstatement of a practising certificate, or consultancy costs. Although a penalty of $20,000 per respondent was sought, no breach of the RoS was established or capable of being established on the evidence, so no penalty could be imposed.

9. Costs — Status: Reserved/Conditional (paras [152]-[155]).

The Trust, as the successful party, is entitled to a contribution toward its actual legal costs. The matter was treated as a half-day "on the papers" investigation, with a notional starting tariff of $2,500 (half of the $4,500 daily rate). The parties are encouraged to agree on costs; if not agreed, the Trust must file a costs memorandum with proof of actual costs within 28 days, with the applicant having 14 days to respond. Costs will be determined 42 days after the determination date. A corrected notional starting point of $2,250 is referenced at para [155] for any adjustment submissions.

The claim was dismissed in full — the Authority found it had no jurisdiction over any of the applicant's claims against the Trust.

None ordered on the merits. Costs: Reserved — notional starting tariff of $2,500 (half-day "on the papers" rate); parties to agree or file memoranda within prescribed timeframes. All other remedies sought by the applicant (distress compensation of $50,000, lost earnings from September 2025 at $7,083/month, retraction of the s 47A report, cessation of the Board's investigation, reinstatement of practising certificate, consultancy costs, and penalties of $20,000 per respondent) were declined for lack of jurisdiction and/or absence of an established breach.

Ilalio Solomona, a fitness instructor employed by Auckland Council at the Birkenhead Pool and Leisure Centre since May 2022, was summarily dismissed on 7 February 2025 for failing to declare a conflict of interest arising from his personal training business and for uploading social media videos filmed at the leisure centre to promote that business. The key legal questions were whether Mr Solomona was unjustifiably dismissed, whether he was unjustifiably disadvantaged, and whether Auckland Council breached its good faith obligations under s 4 of the Employment Relations Act 2000. The Authority upheld the unjustified dismissal claim, dismissed the unjustified disadvantage claim, found a breach of good faith, and awarded remedies subject to a 10% contributory reduction.

Applicant: Ilalio Solomona (employee/fitness instructor)
Respondent: Auckland Council (employer)

Applicant: Robert Morgan, advocate
Respondent: André Lubbe, counsel

Mr Solomona commenced employment as a fitness instructor at Auckland Council's Birkenhead Pool and Leisure Centre on 3 May 2022, having already been operating his own personal training business since 2019. During the recruitment process, Mr Solomona answered "no" to conflict of interest questions, and throughout his employment he completed periodic conflict of interest declarations without ever disclosing his business. In approximately June 2023, Mr Solomona filmed short videos of leisure centre customers at the facility and posted them to social media to support his personal training business; Auckland Council's management became aware of these videos at least 12 months before initiating any disciplinary action, and the centre manager was aware of his business no later than November 2024. Auckland Council issued a disciplinary invitation letter on 17 January 2025 (handed to Mr Solomona on 3 February 2025) relying on internal policies — including a Conflict of Interest Guide that did not directly apply to his situation — and held disciplinary meetings on 5 and 7 February 2025, at which Mr Solomona apologised but maintained he did not understand the allegations; he was summarily dismissed on 7 February 2025. Mr Solomona raised a personal grievance for unjustified disadvantage and unjustified dismissal, arguing Auckland Council delayed unreasonably in raising concerns, relied on inapplicable policies, and did not give him a fair opportunity to respond; Auckland Council maintained the dismissal was justified and the process was fair.

1. Whether Mr Solomona had a written employment agreement and what its terms were — Status: Established (paras [16], [48]–[49]).

The Authority found on the evidence that Mr Solomona did have written terms and conditions of employment, including a conflict of interest provision preventing him from undertaking other business activities that might create a conflict, interfere with his duties, or undermine Auckland Council's interests. This finding was significant because it confirmed Auckland Council had a specific contractual basis it could have relied on in the disciplinary process but chose not to, instead relying on policies that did not squarely apply; the terms were also relevant to the contributory conduct analysis.

2. Whether Auckland Council breached its duty of good faith under s 4 of the Employment Relations Act 2000 — Status: Established (paras [50]–[55]).

The Authority applied the good faith obligations in s 4, noting (citing the Court of Appeal in Auckland City Council v New Zealand Public Service Association Inc [2004] 2 NZLR 10) that parties must be active and constructive in maintaining a productive employment relationship. The Authority found Auckland Council had knowledge of both the videos and Mr Solomona's business well before initiating disciplinary proceedings yet failed to have an open, constructive conversation with him about its concerns before jumping straight to a formal disciplinary process. This failure to address concerns proactively — when the nature of the issues warranted an earlier discussion — was inconsistent with the duty of good faith. The issue was raised by the Authority itself under s 160(3) of the Act as central to the problem, with both parties given the opportunity to address it.

3. Whether Mr Solomona was unjustifiably disadvantaged in his employment — Status: Dismissed (paras [56]–[59]).

Mr Solomona advanced two unjustified disadvantage claims: receiving only two days' notice of the disciplinary meeting, and not having concerns raised with him in a timely manner. The Authority found these matters were better characterised as going to the fairness of the dismissal process rather than constituting standalone unjustified disadvantage. They were therefore addressed within the dismissal justification analysis rather than as separate disadvantage claims, and the unjustified disadvantage grievance was not established.

4. Whether Mr Solomona was unjustifiably dismissed — Status: Established (paras [60]–[67]).

The Authority applied the s 103A justification test: whether the employer's actions and process were what a fair and reasonable employer could have done in all the circumstances. The Authority found the process was substantively unfair in two key respects: Auckland Council relied on policies (particularly the Conflict of Interest Guide) that did not properly apply to Mr Solomona's situation rather than his contractual obligations, leaving him confused and unable to mount a meaningful response; and Auckland Council raised issues it had known about for a significant period without having first addressed them in good faith. While the two-day notice period was not itself found to be unfair (as Mr Solomona indicated willingness to proceed and the Authority accepted the meeting would have been postponed on request), the overall process fell below the standard of a fair and reasonable employer, resulting in a personal grievance for unjustified dismissal.

5. Whether lost wages should be awarded and in what amount — Status: Established (paras [69]–[73]).

Under ss 123 and 128 of the Act, the Authority may order reimbursement of lost wages up to three months' ordinary time remuneration, with discretion to award more under s 128(3). The Authority found Mr Solomona was well placed to mitigate his losses, as he was already contracted to a franchise gym (from December 2023) and could invest further efforts in his personal training business following dismissal. Limited evidence was provided of mitigation steps. Accordingly, a just award was four weeks' ordinary time remuneration of $2,224.00 (gross) before the contribution reduction.

6. Whether compensation for humiliation, loss of dignity, and injury to feelings should be awarded under s 123(1)(c)(i) — Status: Established (paras [74]–[77]).

The Authority applied the test from Richora Group Ltd v Cheng [2018] NZEmpC 113, requiring quantification of harm from humiliation, loss of dignity, and injury to feelings. Mr Solomona gave evidence of depression, mental and emotional difficulty, and feeling mistreated, though no supporting evidence was adduced. The Authority accepted the emotional setback was significant but noted Mr Solomona's entrepreneurial aptitude and assertive approach meant the impact was not as acute as it might have been for others; a just award was $15,000.00 before the contribution reduction.

7. Whether remedies should be reduced for contributory conduct under s 124 of the Act — Status: Established at 10% (paras [78]–[83]).

Section 124 required the Authority to consider whether Mr Solomona's own blameworthy or wrongful conduct contributed to the situation giving rise to his grievance. The Authority found two relevant matters: first, Mr Solomona's failure to formally declare his competing business despite his employment agreement's conflict of interest provision, even though he had disclosed it informally to his line manager (the informal disclosure meant continuing the business was not at the level of wrongful behaviour); and second, his decision to film leisure centre customers for his own social media without proper authorisation, which was inconsistent with his obligation to support and protect his employer's business interests. A 10% reduction to all remedies was applied.

8. Whether costs should be awarded — Status: Reserved (paras [86]–[88]).

The Authority reserved costs and encouraged the parties to resolve the issue themselves. A procedure was set out whereby Mr Solomona could lodge a costs memorandum within 28 days if agreement was not reached, with Auckland Council having 14 days to reply. The Authority noted it would ordinarily apply its standard notional daily rate unless particular circumstances warranted adjustment.

The unjustified dismissal claim was upheld (with good faith breach also established), the unjustified disadvantage claim was dismissed, and remedies were awarded subject to a 10% contributory reduction.

Lost wages: $2,001.60 (gross) (four weeks' ordinary time remuneration of $2,224.00, reduced by 10%)
Compensation under s 123(1)(c)(i): $13,500.00 ($15,000.00 reduced by 10%)
Both amounts payable within 28 days of the determination date.
Reinstatement: Not ordered (not sought).
Costs: Reserved — parties encouraged to resolve between themselves; timetable set for memoranda if required.

Emma Baldwin, a part-time Prep Chef employed by RJ Hospitality Solutions Limited since July 2022, raised personal grievances following her return from parental leave in April 2025, claiming unjustified dismissal, unjustified disadvantage, breach of good faith, and seeking compensation and penalties. The key legal questions were whether a "final pay" payslip before parental leave constituted dismissal, whether unilateral changes to her days and hours of work on return amounted to unjustified disadvantage, whether her manager's conduct constituted bullying, and whether RJH breached its statutory good faith obligations. The unjustified dismissal claim was dismissed, but the unjustified disadvantage claim (relating to unilateral changes to hours and days of work) was upheld, resulting in compensation of $15,000 for hurt and humiliation plus wage arrears.

Applicant: Emma Baldwin (employee, Prep Chef)
Respondent: RJ Hospitality Solutions Limited (employer)

Applicant: Theresa Tudor, advocate
Respondent: Mark Beech, counsel

Emma Baldwin commenced employment with RJ Hospitality Solutions Limited (RJH) as a part-time Prep Chef on 6 July 2022 under an individual employment agreement (IEA) providing for rostered hours with a minimum of 20 hours per week; in practice, she consistently worked Mondays, Wednesdays, Fridays, and Saturdays for a total of approximately 24 hours per week. Before commencing parental leave in September 2024, Ms Baldwin received a payslip referencing "final pay" and payout of leave entitlements, which she later identified as the basis of her dismissal claim, though RJH characterised this as an administrative payroll error. During Ms Baldwin's absence, RJH expanded its operations significantly, moved to new premises, and changed its operational hours, which affected staffing arrangements upon Ms Baldwin's return on 9 April 2025. On her return, Ms Baldwin was not rostered on Mondays, was provided fewer than her contracted hours in several weeks, was not consulted about the changes to her work pattern, and experienced a strained working relationship with her manager, Mr Bertermann; after seven weeks she ceased attending work citing illness and later raised personal grievances on 30 May 2025. RJH maintained the IEA permitted rostered hours to be varied, that business needs justified the changes, and that Mr Bertermann's conduct did not amount to bullying.

1. Whether Ms Baldwin was unjustifiably dismissed on or about 11 September 2024 (prior to parental leave) — Status: Dismissed (paras [45], [52]-[53]).

The only evidence of dismissal was the "final pay" payslip. The Authority weighed this against RJH's explanation of an administrative error and the conduct of both parties, which showed Ms Baldwin expected to return and Mr Bertermann shared that expectation. The Authority found no dismissal occurred at that point.

2. Whether Ms Baldwin was constructively dismissed or her resignation amounted to constructive dismissal following her return — Status: Dismissed (paras [46]-[53]).

The Authority considered whether RJH's conduct was repudiatory (i.e., indicated it would not perform its obligations), noting that repudiation only takes effect when the innocent party communicates acceptance of cancellation, which Ms Baldwin never did. The Authority also examined the constructive dismissal argument by reference to Hyde v Winton Hotel (2002) Ltd [2013] NZERA Christchurch 78, finding the facts distinguishable as the evidence did not establish RJH followed a course of conduct with the deliberate and dominant purpose of coercing Ms Baldwin's resignation. Applying Corcoran v Rogerson & Howell and Vermuelen v Mikes Transport Warehouse Ltd [2021] NZEmpC 197, the Authority found Ms Baldwin effectively withdrew her labour (akin to resignation) rather than being dismissed.

3. Whether Ms Baldwin was unjustifiably disadvantaged by changes to her days and hours of work without consultation — Status: Established (paras [54]-[57], [71]).

The Authority found that by the time of parental leave, Ms Baldwin's days and hours had become ordinary and predictable and she had a legitimate expectation of consistency, regardless of the IEA's reference to rostering. Applying Commissioner of Police v Coffey [2014] NZEmpC 194, the Authority held that good faith under the Employment Relations Act 2000 requires an employer to consult before varying an employment agreement, provide relevant information, allow comment, and genuinely consider that comment before deciding. RJH did not do this; changes were made unilaterally and were not substantively discussed with Ms Baldwin until seven weeks after her return, and only at Ms Baldwin's initiative.

4. Whether Ms Baldwin was unjustifiably disadvantaged by being provided less than her contracted minimum 20 hours per week — Status: Established (paras [55], [71], [83]-[85]).

The Authority found that RJH's failure to provide contracted minimum hours (and, in practice, the 24 hours per week that had become customary) was an unjustified disadvantage flowing directly from the unilateral change process. Lost wages of 15.5 hours ordinary time were identified as owing, being the shortfall between hours actually worked during the seven weeks of return and the contractual minimum.

5. Whether Ms Baldwin was unjustifiably disadvantaged by disparate treatment — specifically, Monday hours being given to a casual employee — Status: Dismissed (paras [59]-[60]).

The Authority found no evidence of disparate or discriminatory treatment; rather, for a time RJH made efforts to provide Monday work, albeit under the mistaken belief it was not obligated to do so. Any lost wages for Mondays Ms Baldwin was ready, willing, and able to work were addressed through the broader disadvantage remedy.

6. Whether Ms Baldwin was unjustifiably disadvantaged by failure to provide induction, training, or clear directions at the new warehouse — Status: Dismissed (para [61]).

The Authority found the key impediment to an effective induction was the damaged working relationship between Ms Baldwin and Mr Bertermann rather than RJH's failure to provide one. The induction provided was found to be appropriate, if imperfect and somewhat iterative.

7. Whether Ms Baldwin was unjustifiably disadvantaged by Mr Bertermann's alleged bullying conduct — Status: Dismissed (paras [62]-[69]).

The Authority applied the WorkSafe definition of bullying (repeated and unreasonable conduct directed at a worker that can lead to physical or psychological harm), and considered van Leeuwen v Canterbury District Health Board and Emmerson v Northland District Health Board [2019] NZEmpC 34. The Authority found no clear evidence of bullying; Mr Bertermann's conduct was attributable to the fractured working relationship, communication style, and his implementation of management instructions rather than deliberate targeting of Ms Baldwin, and did not meet the required threshold.

8. Whether RJH was obligated to investigate the bullying allegations and whether its failure to do so was a further unjustified disadvantage — Status: Dismissed (para [70]).

Because the bullying finding was not established, no separate disadvantage could arise from RJH's failure to investigate those allegations. The Authority also observed that events escalated quickly, leaving limited time for investigation before Ms Baldwin withdrew her labour.

9. Whether RJH breached its good faith obligations under section 4 of the Employment Relations Act 2000, warranting a penalty — Status: Dismissed (paras [80]-[82]).

The Authority applied the high threshold from Radius Residential Care Ltd v New Zealand Nurses Organisation Inc [2016] NZEmpC 112 and section 4A of the Act, requiring the breach to be deliberate, serious, sustained, and intended to undermine the agreement or relationship. While RJH's conduct was unjustified, the Authority found it was not intended to undermine the IEA or the employment relationship; Mr Bertermann was following management instructions without access to key documents. The penalty threshold was not met.

10. Whether any remedy should be reduced for Ms Baldwin's blameworthy contributory conduct under section 124 of the Act — Status: Dismissed (paras [78]-[79]).

The Authority applied the principles of causation and proportionality from Keighran v Kensington Tavern Ltd [2024] NZEmpC 28. It found Ms Baldwin did not contribute in any blameworthy way to the situation giving rise to her disadvantage grievances, and no reduction was made.

11. Whether Ms Baldwin is entitled to arrears of annual leave — Status: Established (paras [86], [87](a)(iii)).

The Authority found that Ms Baldwin's employment ended by resignation effective end of May 2025, and directed RJH to calculate and pay any outstanding annual leave entitlements in accordance with the Holidays Act 2003 on that basis.

12. Whether either party is entitled to costs — Status: Conditional (paras [89]-[91]).

Costs were reserved. The parties were encouraged to resolve costs between themselves; if not resolved, Ms Baldwin may file a memorandum on costs within 14 days of the determination, with RJH having 14 days to reply. The Authority indicated it would assess costs on its usual notional daily rate unless particular circumstances warranted adjustment.

The claim was partially upheld: the unjustified dismissal, bullying disadvantage, disparate treatment disadvantage, induction disadvantage, and good faith penalty claims were all dismissed; the unjustified disadvantage claim for unilateral changes to days/hours and hours shortfall was established, resulting in monetary awards.

- Compensation for hurt and humiliation under s 123(1)(c)(i) of the Employment Relations Act 2000: $15,000
- Arrears of wages: 15.5 hours at ordinary time rate (exact dollar amount not specified), less applicable tax/deductions, accompanied by a payslip showing the calculation
- Arrears of annual leave: to be calculated by RJH in accordance with the Holidays Act 2003 on the basis that employment ended 31 May 2025, accompanied by a payslip showing the calculation (exact dollar amount not determined)
- All payments due within 28 days of the determination
- Reinstatement: Not ordered (Ms Baldwin found to have effectively resigned)
- Costs: Reserved; parties to attempt agreement; memorandum process outlined if needed

The applicant (ABR) was employed as business development manager/general manager by the respondent (CPM), a construction-sector labour hire company, from October 2021 until summary dismissal on 1 September 2023. ABR claimed unjustified dismissal; CPM counterclaimed for breach of employment obligations, damages, and penalties. The Authority found the dismissal was unjustified on procedural grounds but the applicant's substantive conduct was blameworthy, resulting in a reduced remedy of two months' ordinary pay; all issues of damages and penalties on the counterclaim were deferred for further determination.

Applicant: ABR (employee — business development manager/general manager)
Respondent: CPM (employer — labour hire company in the construction sector)

Applicant: May Moncur, advocate
Respondent: Daniel Erickson and Ella Burney, counsel

ABR was employed from 18 October 2021, initially under an agreement with another group entity, then directly with CPM from 17 April 2023, to establish and run a labour hire business in the construction sector. On 31 August 2023 the HR administrator (who reported to ABR) raised concerns with the COO about ABR's bullying behaviour and provided evidence — including emails and documents on a USB stick — that ABR had shared CPM's proprietary business information with external parties to establish a competing labour hire business. On 1 September 2023 the CEO convened a meeting via audio-visual technology, put the allegations to ABR, considered ABR's response, and dismissed ABR summarily for workplace bullying and breach of trust and confidence. ABR raised a personal grievance on 4 October 2023 arguing the dismissal was reactive and procedurally defective; CPM counterclaimed for breaches of the employment agreement, including restraint of trade, confidentiality, and implied duties. Post-dismissal, further conduct was discovered including ABR's authorisation of unlawful wage deductions from migrant workers (confirmed by a government investigation) and additional bullying and threatening communications to staff.

1. Whether the applicant's employment was at all relevant times with the respondent (CPM) rather than another group entity — Status: Established (paras [21]).

The Authority examined the parties' employment agreements from October 2021 and April 2023 and the contemporaneous evidence of ABR's activities. It found the joint intention in entering the initial agreement was to avoid ABR breaching restraint obligations from a prior employer, and ABR was directing the respondent's labour hire business from at least May 2022. The Authority concluded the true nature of the employment relationship was at all relevant times with CPM.

2. Whether the applicant was unjustifiably dismissed — Status: Established on procedural grounds (paras [22]-[50]).

Under s 103A of the Employment Relations Act 2000 the Authority applies an objective test of whether the employer's actions were those of a fair and reasonable employer. The Authority found the substantive grounds for dismissal (breach of trust/confidence in establishing a competing business using CPM's proprietary information, and bullying) were well-supported by the evidence and open to CPM. However, the dismissal meeting on 1 September was procedurally defective: ABR received no advance notice of the meeting or the allegations, was not provided with the supporting evidence gathered, and was not given the opportunity to have a representative present. The Authority found CPM could have used the contractual suspension provision to conduct a fair process; its failure to do so meant the s 103A justification test was not met.

3. Whether the applicant is entitled to compensation for hurt and humiliation under s 123(1)(c)(i) — Status: Dismissed (paras [53]).

Section 123 of the Act confers a discretion on the Authority to award remedies. Notwithstanding the procedural unjustification, the Authority declined to award the $30,000 compensation sought because the substantive evidence was overwhelming that ABR's actions were inconsistent with obligations owed to CPM and themselves justified dismissal; it would therefore not be appropriate to make such an award.

4. Whether the applicant is entitled to reimbursement of lost wages under s 123(1)(b)/s 128 — Status: Partially established (paras [54]-[56]).

The Authority found ABR suffered three months' lost wages as a consequence of the unjustified dismissal. However, under s 124 of the Act the Authority reduced the award for ABR's blameworthy contributory conduct by one third, resulting in an award of two months' ordinary pay. The reduction balanced CPM's procedural failure (which, if corrected, might have preserved employment for a few more months) against ABR's serious contributory conduct.

5. Whether the applicant contributed to the circumstances of the personal grievance — Status: Established (paras [55]-[56]).

Applying s 124 of the Act, the Authority found ABR's conduct — including developing a competing business using CPM's proprietary information, bullying behaviour, and authorising unlawful wage deductions — was serious and blameworthy. A one-third reduction of the lost wages remedy was imposed.

6. Whether the applicant breached express obligations under the employment agreement (confidentiality, honest performance, non-disparagement) — Status: Established (paras [57]-[63]).

The Authority applied the employment agreement clauses (8.2, 37.1, 2.3(d)) and the duty of fidelity from Robb v Green [1985] 2 QB 315. It found ABR's disclosure of CPM's confidential budget, profit and loss, and business model information to external parties to set up a competing business breached these express terms. The breach of ABR's brand (similar to CPM's, developed using CPM's IP) was also established.

7. Whether the applicant breached implied obligations of loyalty and fidelity and the statutory duty of good faith (s 4 of the Act) — Status: Established (paras [57]-[62]).

The Authority accepted these duties were binding. It found ABR's conduct in sharing proprietary information, bullying and threatening staff, and authorising unlawful wage deductions from migrant workers all constituted breaches of the implied duty of fidelity and the statutory good faith obligation.

8. Whether the applicant's bullying and threatening behaviour towards staff constituted a breach of duty — Status: Established (paras [40], [47], [62]).

The Authority reviewed the voice recording and post-dismissal written communications from August 2022 to August 2023 showing ABR threatening employees with Police, Immigration New Zealand, and debt collectors. It found the respondent's conclusion that this amounted to bullying was open on the evidence, and the breach was established.

9. Whether the applicant's authorisation of unlawful wage deductions constituted a breach of duty — Status: Established (paras [42]-[46], [62]).

The Authority relied on a government agency investigation report (accepted by CPM and unchallenged by ABR) which identified ABR as the general manager who authorised unlawful deductions from migrant workers' pay. ABR's submission that they acted under Board direction or as part of a team was rejected; ABR had received clear legal advice on lawful deductions, exceeded that advice, and failed to escalate the issue transparently to the Board.

10. Whether the post-employment restraint of trade clauses are enforceable and were breached — Status: Established (paras [64]-[70]).

The Authority applied the test from Transpacific Industries Group (NZ) Ltd v Harris [2013] NZEmpC 97: restraints are prima facie unenforceable; the employer must show a legitimate proprietary interest to protect and that the restraint is reasonable in duration, geography, and scope at the time of contracting. The six-month, New Zealand-wide restraint was found reasonable given ABR's seniority, remuneration, access to trade connections, pricing information, and customer relationships. ABR was found to have established a competing construction labour hire business within the restraint period, publicly advertising it in the North Island, thereby breaching the restraint.

11. Whether the respondent suffered quantifiable losses entitling it to damages (advisory costs of $49,250; revenue decreases from adverse publicity and post-employment breaches) — Status: Not reached (paras [4], [72]).

The determination dealt with liability for the counterclaim only. Assessment of the quantum of damages consequent on the established breaches was expressly deferred for further investigation and determination.

12. Whether a penalty should be awarded for breach of the employment agreement — Status: Not reached (para [72]).

This issue was identified but, consistent with the liability-only approach to the counterclaim, was deferred for a subsequent proceeding.

13. Whether the interim non-publication order should be made permanent — Status: Not reached/deferred (paras [5]-[9]).

The Authority declined to determine the permanent non-publication application at this stage because the substantive matter is not yet finally resolved (damages remain to be assessed). The interim non-publication order dated 15 April 2025 remains in place under clause 10, schedule 2 of the Act.

14. Whether either party is entitled to costs — Status: Reserved (para [73]).

Costs were reserved without reasons given; they will be addressed in a later determination.

The claim was partially upheld: unjustified dismissal was established on procedural grounds but compensation for hurt and humiliation was declined; ABR is awarded two months' ordinary pay (three months reduced by one-third for contribution). The counterclaim liability issues were established but remedy (damages and penalties) is deferred.

Lost wages: Two months' ordinary pay (three months' lost wages reduced by one-third for ABR's contributory blameworthy conduct), payable by CPM within 21 days of the determination.
Compensation (s 123(1)(c)(i)): Nil — discretion exercised not to award.
Reinstatement: Not sought or ordered.
Damages on counterclaim: Not yet assessed — deferred to a further investigation and determination on quantum.
Penalties on counterclaim: Not yet assessed — deferred.
Non-publication order: Interim order of 15 April 2025 remains in place pending final determination.
Costs: Reserved.

Aaron Potter, a night-shift pack-out employee at Talley's Limited, was summarily dismissed in July 2024 following a complaint by a colleague about his conduct in connection with a health and safety representative election. Mr Potter raised personal grievances for unjustified dismissal, unjustified disadvantage, and alleged breach of good faith. The Authority found the dismissal unjustified on both procedural and substantive grounds and awarded compensation of $20,000 and lost remuneration of $7,226.25 (gross), with no reduction for contribution.

Applicant: Aaron Potter (employee)
Respondent: Talley's Limited (employer)

Applicant: Lawrence Anderson, advocate
Respondent: Graeme Malone, counsel

Mr Potter had been employed by Talley's Limited at its Ashburton plant since November 2021, working night shifts in crew four (fry pack-out). On 18 June 2024, Talley's held a vote for health and safety representatives; both Mr Potter and a colleague (referred to as IMX) were candidates for crew four, and IMX won. On 26 June 2024, IMX lodged a written complaint alleging Mr Potter had behaved inappropriately and intimidatingly in connection with the HSR vote and had pressured IMX to step down. Talley's investigated the complaint and, following a disciplinary meeting on 4 July 2024, summarily dismissed Mr Potter on the same day for serious misconduct. Mr Potter denied the allegations and raised personal grievances for unjustified dismissal, unjustified disadvantage causing harm, and breach of good faith, which the parties were unable to resolve at mediation, leading to the Authority investigation.

1. Whether Mr Potter was unjustifiably dismissed — procedural justification — Status: Established (not justified) (paras [26]–[35]).

The Authority applied the s 103A(3) fair and reasonable employer test, assessing whether Talley's properly investigated, adequately articulated its concerns, gave Mr Potter a reasonable opportunity to respond, and genuinely considered his responses before deciding. The Authority found Talley's failed on all four requirements: the investigation was superficial (relying only on IMX's complaint and two sets of messages, not reviewing all available messages or relevant CCTV footage); the disciplinary invite letter was confused and inadequate (wrong name, inconsistent allegation count, poorly particularised concerns); Mr Potter was not given a proper opportunity to respond; and his responses were not genuinely considered before the dismissal decision was made. Talley's process was found to be unjustified, citing Lal v The Warehouse Limited [2017] NZEmpC 66.

2. Whether Mr Potter was unjustifiably dismissed — substantive justification — Status: Established (not justified) (paras [36]–[38]).

The Authority assessed whether a fair and reasonable employer could have concluded on the evidence that Mr Potter had bullied IMX or improperly influenced the HSR vote. Even setting aside the procedural failings, the Authority found that a fair and reasonable employer could not have concluded, on IMX's complaint and Mr Potter's responses alone, that he had bullied IMX, nor that CCTV footage of the staffroom established intimidation or improper influence over the vote. The Authority noted other employees were equally involved in assisting with the voting process. The decision to summarily dismiss was not substantively justified.

3. Whether Mr Potter was unjustifiably disadvantaged by Talley's actions — Status: Not reached (para [40]).

Mr Potter raised a personal grievance for unjustified action causing disadvantage based on the same factual matrix as the dismissal grievance. The Authority did not consider this grievance separately, treating it as an alternative element of the same employment relationship problem that was rendered unnecessary by the successful unjustified dismissal finding.

4. Whether Talley's breached the duty of good faith under s 4 of the Act — Status: Established (para [41]).

The Authority found that Talley's failure to conduct a fair disciplinary process — specifically, failing to investigate Mr Potter's conduct adequately and failing to engage properly in the disciplinary process — constituted a breach of the duty of good faith. No separate remedy was awarded for this breach beyond the remedies for unjustified dismissal.

5. Whether recent legislative amendments to remedies for misconduct/serious misconduct applied to Mr Potter's claim — Status: Dismissed (paras [43]–[44]).

Talley's submitted that recent amendments to the Act limiting remedies where an employee has engaged in misconduct or serious misconduct should apply. The Authority rejected this, holding that Mr Potter's remedy rights are determined by the law as it stood at the time of his dismissal (pre-amendment). Reference was made to Paul McMillan and another v Qube Ports NZ Limited [2026] NZERA 262.

6. Whether compensation for humiliation, loss of dignity and injury to feelings should be awarded, and in what amount — Status: Established (paras [45]–[48]).

The Authority applied s 123(1)(c)(i) of the Act and assessed the quantum of harm by reference to Mr Potter's and Ms Miyazaki's evidence of the emotional impact of the dismissal, including shock, depression, anxiety, sleeplessness, loss of self-esteem, and embarrassment. Citing Stormont v Peddle Thorp Aitken Ltd, Waikato District Health Board v Archibald, and Richora Group Ltd v Cheng, the Authority accepted the advocate's assessment and awarded $20,000.

7. Whether Mr Potter was entitled to reimbursement for lost remuneration, and in what amount — Status: Established (paras [49]–[50]).

Under s 123(1)(b) and s 128 of the Act, the Authority must award the lesser of three months' ordinary time remuneration or actual loss. Mr Potter's claimed actual loss of $6,690.97 plus holiday pay of $535.28 (totalling $7,226.25) was less than three months' ordinary remuneration and was therefore awarded in full.

8. Whether Mr Potter's conduct contributed to the situation giving rise to his grievance, warranting a reduction in remedies under s 124 of the Act — Status: Dismissed (paras [51]–[53]).

The Authority applied the s 124 test requiring culpable or blameworthy conduct that contributed to the grievance, citing Xtreme Dining Ltd v Dewar [2016] NZEmpC 136. The Authority found Mr Potter had supported IMX throughout, had not attempted to influence voting, and had only sought to assist the vote organiser in explaining the process — as other employees had also done. No reduction in remedies was warranted.

9. Costs — Status: Reserved (paras [56]–[59]).

The Authority reserved costs and encouraged the parties to resolve the issue between themselves. A process was set out for lodging memoranda if costs cannot be agreed, with the Authority indicating it would apply its usual daily tariff basis subject to any adjustment factors.

The claim was upheld in full: Mr Potter was found to have been unjustifiably dismissed, the unjustified disadvantage grievance was not separately determined (being subsumed by the dismissal finding), a breach of good faith was also found, and full remedies were awarded without any contribution reduction.

Compensation (hurt/humiliation/loss of dignity): $20,000.00 (pursuant to s 123(1)(c)(i))
Lost remuneration: $7,226.25 gross (comprising $6,690.97 actual lost earnings plus $535.28 holiday pay, pursuant to s 123(1)(b))
Reinstatement: Not sought or ordered
Costs: Reserved — parties encouraged to resolve; if not, memorandum process outlined; daily tariff basis anticipated

Frederik Waanders, a Technical Trainer employed by MSX International Australia Pty Limited, was summarily dismissed on 20 March 2026 following conduct during two Isuzu Trucks training courses that MSX alleged caused serious reputational damage to its relationship with its only New Zealand client, GM/Isuzu. Waanders applied for interim reinstatement, raising questions about unjustified dismissal and the availability of permanent reinstatement under the new s 123C of the Employment Relations Act 2000. The Authority found a serious question to be tried on unjustified dismissal but declined interim reinstatement on the grounds that the balance of convenience and overall justice favoured MSX.

Applicant: Frederik Waanders (employee)
Respondent: MSX International Australia Pty Limited (employer)

Applicant: Jordana Leerson, advocate for the Applicant
Respondent: Kirsti Laird, counsel for the Respondent

Waanders commenced employment as a Technical Trainer with MSX on 14 August 2023, working at the GM/Isuzu training centre in Auckland. MSX's sole New Zealand client is GM, which distributes Isuzu Trucks. During two-day training courses on 17–19 March 2026, Waanders left mid-course on 17 March, reportedly finished the first course approximately three hours early on 18 March, and did not attend training on the second day of that course, with GM/Isuzu representatives stepping in to deliver training. Multiple GM/Isuzu managers emailed MSX expressing serious concerns. MSX's management attempted to contact Waanders by phone and Microsoft Teams on 17–19 March without success, though Waanders disputes that he deliberately avoided contact. On 20 March 2026, MSX summarily dismissed Waanders for serious misconduct via written notice; Waanders raised a personal grievance on 24 March 2026 and applied for interim reinstatement on 8 May 2026.

1. Whether there is a serious question to be tried in relation to unjustified dismissal — Status: Established (paras [58]–[83]).

The test requires the applicant to show a seriously arguable claim of unjustified dismissal, assessed on untested affidavit evidence at this interim stage. The Authority found it arguable that MSX did not comply with the procedural requirements of s 103A(3) of the Act before dismissing Waanders, noting that a fair and reasonable employer's ability to conclude the behaviour amounted to serious misconduct remains a live issue. The Authority also noted MSX's counter-argument under s 103A(3)(e) that Waanders obstructed procedural compliance by refusing to engage, which it reserved for the substantive hearing. Citing Stellar Elements New Zealand Limited v Amesbury [2024] NZEmpC 136, the Authority confirmed the evaluation is on a provisional basis only.

2. Whether there is a serious question to be tried in relation to permanent reinstatement under the new s 123C of the Employment Relations Act 2000 — Status: Partially established (paras [84]–[101]).

Section 123C (inserted 21 February 2026) prohibits the Authority from ordering reinstatement under s 123(1)(a) if it determines that an action of the employee contributed to the situation giving rise to the personal grievance. The Authority drew on analogous s 124 case law (Maddigan v Director-General of Conservation [2019] NZEmpC 190) to conclude that contribution must be assessed through the lens of culpability and blameworthiness, consistent with the Act's good-faith objectives. While the quality of training and absences were not at this stage treated as contributing actions, the Authority found it at least arguable that Waanders' lack of communication and engagement with MSX contributed to the situation giving rise to the grievance, making permanent reinstatement potentially unavailable. The Authority characterised Waanders' case on this sub-issue as only "weakly arguable."

3. Whether the balance of convenience favours interim reinstatement — Status: Dismissed (paras [102]–[112]).

The balance of convenience involves considering adequacy of damages, preservation of status quo, and relative strength of the parties' cases, per Stellar Elements New Zealand Limited v Amesbury [2024] NZEmpC 36. The Authority accepted Waanders' evidence of financial hardship and the difficulty of finding alternative employment in a specialist field, but found that the critical countervailing factor was the breakdown in GM/Isuzu's trust and confidence in Waanders. Because all available work required Waanders to operate at the GM training centre and directly with GM/Isuzu managers who had lost confidence in him, and because MSX's relationship with its only New Zealand client could be fundamentally damaged by reinstatement, the balance of convenience strongly favoured MSX.

4. Where the overall justice of the case lies — Status: Dismissed (paras [113]–[120]).

The overall justice assessment requires a balancing exercise weighing the impact of granting or refusing interim reinstatement. The Authority acknowledged Waanders' financial hardship but identified that the strength of his unjustified dismissal claim depended significantly on unresolved questions about obstruction of process and whether permanent reinstatement would even be available under s 123C. Given the fragility of MSX's relationship with GM as its sole New Zealand client and Waanders' only weakly arguable case on permanent reinstatement, the overall justice favoured declining the application.

5. Costs — Status: Reserved (para [124]).

The Authority reserved costs without further discussion, to be determined following the substantive hearing.

The application for interim reinstatement was declined in full; a substantive investigation meeting was scheduled for the first week of August.

None ordered at this stage. Costs reserved. Substantive investigation meeting to be set down in the first week of August (para [122]).

Neil Hall, a Certified Mould Testing Technician and Asbestos Surveyor employed by Consultex Company Limited, was made redundant in March 2025 following a restructuring of the company's Northland operations. He claimed his dismissal was unjustified on both substantive and procedural grounds. The Authority found that while there were genuine commercial reasons for the restructure, Consultex's failure to properly consult with Mr Hall — particularly regarding financial information and redeployment — breached its good faith obligations and rendered the dismissal unjustified, resulting in a compensation award of $8,000.

Applicant: Neil Hall (employee)
Respondent: Consultex Company Limited (employer)

Applicant: John Dustow, advocate
Respondent: Mark Beech and Kirsten Lombard, counsel

Neil Hall commenced employment with Consultex in August 2021 as a Trainee Hazmat Consultant, progressing to Certified Mould Testing Technician and Asbestos Surveyor, working in the Northland region. In September 2024 he sustained a back injury and was on ACC compensation when Consultex commenced a restructuring consultation process in February 2025. On 10 February 2025, Consultex proposed to integrate the Northland branch under Auckland management, disestablish both Mr Hall's role and the Northland Regional Manager role, and appoint the Regional Manager (Gareth Jones) to a new Senior HAZMAT Consultant position for which Mr Hall allegedly lacked the necessary Asbestos Assessor Licence. Mr Hall responded with detailed questions requesting six months of financial data, asking about redeployment options, and suggesting alternatives; Consultex's response of 20 February 2025 provided only partial financial information, did not address redeployment, and conveyed a tone of finality. Mr Hall ceased engaging after that email, and on 6 March 2025 Consultex confirmed his role was disestablished effective 7 March 2025, with his final day of employment being 4 April 2025. Mr Hall also incorporated a new competing business on 10 February 2025, the same day the proposal was issued.

1. Whether the disestablishment of Mr Hall's position was substantively justified — Status: Established (paras [13]-[19]).

The applicable test is found in s 103A(2) of the Employment Relations Act 2000 (ERA): whether the employer's actions, and how it acted, were what a fair and reasonable employer could have done in all the circumstances. The Authority confirmed it may examine the merits of a redundancy decision but will not substitute its own commercial judgment for that of the employer. On the evidence, Ms Lewis and Mr Morris-Whyte gave credible evidence of a 30% gross revenue decline, increased competition, and reduced government social housing spending. The Authority found there were genuine commercial reasons for disestablishing Mr Hall's position, and a fair and reasonable employer could have reached the same conclusion.

2. Whether the restructuring process complied with Consultex's good faith obligations under s 4(1A) of the ERA — Status: Established (breach) (paras [45]-[77]).

Under ss 4(1A)(a), (b), and (c) of the ERA, employers must be active, communicative, and provide employees with relevant information before making decisions affecting their employment. Applying Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37, the Authority held that good faith requires timely and ample access to relevant information to minimise grievance. The Authority found three key failures: (1) Consultex did not provide the six months of financial data Mr Hall specifically requested, nor explain why it was withheld; (2) Consultex failed to meaningfully engage with Mr Hall's redeployment enquiry, despite its obligation to do so; and (3) Ms Lewis' 20 February 2025 email conveyed that a final decision had already been made, prematurely closing off the consultation process. These failures rendered the dismissal unjustified.

3. Whether the drafting deficiencies in the 10 February 2025 proposal letter caused unfairness — Status: Dismissed (paras [52]-[56]).

The proposal letter was poorly drafted, twice describing the status quo as a change and mixing references to roles and individuals confusingly. However, the Authority applied s 103A(5) ERA (minor defects that do not result in unfair treatment do not render a dismissal unjustified) and found Mr Hall in fact understood the letter, as demonstrated by the specific and detailed questions he posed in response. No unfairness arose from the drafting alone.

4. Whether Mr Hall being locked out of Consultex's surveying software created unfairness — Status: Dismissed (paras [57]-[60]).

Mr Hall argued that being locked out of the job-tracking software limited his ability to respond to the proposal. Consultex said the lock-out coincided with a subscription renewal and Mr Hall had no operational need for the system while on ACC. The Authority found no unfairness because data from that system would not have materially assisted Mr Hall in addressing the core reasons given for his proposed redundancy, and he retained access to other company IT systems.

5. Whether the restructure was driven by a secondary motive relating to Mr Hall's back injury — Status: Dismissed (paras [47]-[51]).

Mr Hall alleged the real reason for his dismissal was to remove him from the business because he was absent on ACC. The Authority found on the evidence that Mr Hall's injury was not a material factor in Consultex's decision; the company's top-up of his salary was discretionary (not contractual), it was not trying to replace him, and there was no urgent need for his return. The Authority accepted Ms Lewis' denial of any injury-related motive.

6. Whether there were genuine redeployment opportunities that should have been offered to Mr Hall — Status: Dismissed in part / Procedural breach established (paras [68]-[69], [74]-[75]).

The Authority found that while Consultex was obliged under its good faith duties to engage with Mr Hall's specific redeployment enquiry (and failed to do so), the substantive evidence showed there were no realistic redeployment prospects for Mr Hall across the company's multiple offices. The failure to engage with the redeployment question was a breach of good faith (contributing to the finding of unjustified dismissal), but there was no substantive redeployment remedy available.

7. Whether Mr Hall is entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) ERA — Status: Established (paras [78]-[84]).

The Authority applied Richora Group Ltd v Cheng [2018] NZEmpC 113, which requires assessment of actual harm flowing from the established personal grievance. The Authority accepted that Consultex's failures to engage with financial information and redeployment questions, combined with the confusing initial proposal, caused genuine distress. However, it discounted the quantum because Mr Hall is an experienced businessperson, had a concurrent business at the time, was incorporating a new competing business, no medical evidence of emotional harm was provided, and his evidence of emotional impact related largely to events months after termination. An award of $8,000 was made.

8. Whether remedies should be reduced for Mr Hall's contributory blameworthy conduct under s 124 ERA — Status: Dismissed (paras [85]-[90]).

Section 124 requires the Authority to consider reducing remedies where the employee's blameworthy or wrong conduct contributed to the situation giving rise to the grievance. The Authority considered two potential forms of contribution: Mr Hall's non-engagement after 20 February 2025, and his incorporation of a competing company on 10 February 2025. Neither was found blameworthy: the non-engagement post-dated and did not cause the breaches, and incorporating a new company (without trading in competition during employment or breaching any contractual obligation) is permissible preparatory conduct. No reduction was applied.

9. Whether Mr Hall's claim for lost wages should be determined — Status: Not reached (para [5]).

Mr Hall's claim for lost wages was withdrawn in his closing submissions and was therefore not considered by the Authority.

10. Costs — Status: Reserved (paras [93]-[95]).

The Authority reserved costs and encouraged the parties to resolve the issue between themselves. If not resolved, Mr Hall may file a memorandum on costs within 28 days of the determination, with Consultex having 14 days to reply. The Authority indicated costs would ordinarily be assessed on its standard notional daily rate.

The claim was partially upheld: unjustified dismissal was established on procedural/good faith grounds, with compensation of $8,000 awarded; the claim for lost wages was withdrawn; and costs were reserved.

Compensation (hurt/humiliation/distress): $8,000 under s 123(1)(c)(i) ERA, payable within 28 days of the determination date.
Lost wages: Nil (withdrawn by applicant).
Reinstatement: Not sought or ordered.
Contribution reduction: None applied.
Costs: Reserved — parties encouraged to resolve between themselves; timetable set for costs memoranda if required.

Itania Nikolao, a former employee of Waikato Regional Council (WRC), sought to amend a mediator-certified record of settlement so that a payment originally directed to her former law firm for legal costs would instead be paid directly to her. WRC opposed the application, arguing the Authority lacked jurisdiction to amend a certified settlement and that it had not breached the settlement terms. The Authority dismissed Ms Nikolao's application, finding no jurisdiction to amend the settlement and no breach by WRC.

Applicant: Itania Nikolao (former employee)
Respondent: Waikato Regional Council (employer)

Applicant: Self-represented
Respondent: Andrea Dunseath, advocate for the respondent

Ms Nikolao and WRC entered into a mediator-certified record of settlement in late 2023 resolving employment relationship matters between them. Clause 4 of that settlement required WRC to pay a specified sum toward Ms Nikolao's legal costs upon receipt of a tax invoice from her named law firm, addressed to WRC, by 20 January 2024. WRC never received such an invoice from the law firm as required. Ms Nikolao subsequently made a complaint to the New Zealand Law Society against the law firm, which was upheld, with the result that the amount she actually owed the firm was reduced significantly; a further complaint about a smaller residual amount was still pending. Ms Nikolao applied to the Authority seeking what she described as a "minor clarification," asking that the payment be redirected to her personally, either because she had represented herself or because the law firm had failed her. WRC opposed the application on jurisdiction grounds, submitting that a certified settlement is final and binding under s 149 of the Employment Relations Act 2000 and cannot be amended or varied unilaterally.

1. Whether the Authority has jurisdiction to amend or vary a mediator-certified record of settlement — Status: Dismissed (paras [20]-[32]).

Under s 149(3) of the Employment Relations Act 2000, a mediator-certified record of settlement is final and binding on the parties and, except for enforcement purposes, cannot be brought before the Authority by action, application for review, or otherwise. The Court of Appeal in TUV v Chief of New Zealand Defence Force [2020] NZCA 12 confirmed that s 149 prevents the reopening of a valid settlement agreement. The Authority noted that limited intervention may be possible where an agreement is void or voidable (e.g., mental incapacity), but those grounds were not argued and the bars are high. The Authority concluded that no basis existed to amend the settlement in the manner Ms Nikolao sought.

2. Whether WRC was in breach of clause 4 of the record of settlement (enforcement claim) — Status: Dismissed (paras [23]-[28]).

Enforcement in the Authority involves seeking a compliance order or a penalty for breach of a settlement; these were not the remedies Ms Nikolao sought. In any event, clause 4 required WRC to make payment only upon receipt of a tax invoice from the named law firm addressed to WRC; on the material before the Authority, no such invoice was ever received by WRC. The Authority also noted uncertainty about the actual amount owed to the law firm following Ms Nikolao's successful Law Society complaint. Accordingly, it was not established that WRC had failed to comply with its obligations under the settlement.

3. Whether the settlement should be varied by consent or unilaterally — Status: Dismissed (paras [29]-[32]).

Ms Nikolao also framed her application as seeking a variation. The Authority found that this was not a variation by consent as WRC strongly opposed it. The Authority reiterated that it has no obvious power to amend or vary a certified record of settlement except in limited circumstances (such as void or voidable agreements), which were not applicable here. The claim was dismissed.

4. Costs — Status: Reserved (paras [33]-[35]).

WRC succeeded on all substantive issues. The matter was dealt with on the papers without an investigation meeting. The Authority encouraged the parties to resolve costs between themselves. If costs cannot be agreed, WRC was directed to file a memorandum on costs within 28 days of the determination, with Ms Nikolao having 14 days from service to reply.

The application was dismissed in full; Ms Nikolao did not establish any basis for amendment, variation, or enforcement of the record of settlement.

None ordered. Costs reserved — WRC to file memorandum on costs within 28 days if not resolved by agreement; Ms Nikolao to have 14 days to reply from service of that memorandum.

Four salaried employees (union members and delegates) brought personal grievances against their employer after a senior manager held individual private meetings with each of them in September 2024, making negative comments about their union involvement, and after the respondent temporarily withdrew work-from-home entitlements for striking employees. The key legal questions were whether these actions constituted unlawful discrimination and/or duress under the Employment Relations Act 2000, and whether a declined annual leave request also constituted discrimination. The Authority upheld the discrimination and duress grievances arising from the one-on-one meetings and the work-from-home policy change, dismissed the annual leave grievance, and awarded each applicant $10,000 compensation for hurt, humiliation, and injury to feelings.

Applicant: Four Applicants (employees — identities suppressed by non-publication order)
Respondent: A Respondent (employer — identity suppressed by non-publication order)

Applicant: Tim Oldfield, counsel for the Applicants
Respondent: David France, counsel for the Respondent

The four applicants are salaried employees and union members at the respondent's site; three of the four are union delegates who have been actively involved in collective bargaining initiated in November 2023, including participating in strike action from May 2024. In September 2024, a senior manager (who had already given notice of resignation) called each applicant individually into their office and made negative comments about their union involvement, including that their participation in strike action or role as a delegate was harming their career prospects, job security, and was viewed negatively by the respondent's owner. Around the same time, a leave request by the second applicant was declined, and the area manager briefly applied a policy preventing union members who had struck from working from home — a decision that was quickly reversed after union objection. The applicants raised personal grievances in November 2024 and attended multiple mediations without resolution. The respondent acknowledged the senior manager's conduct was inappropriate, characterised it as unauthorised, and said it had investigated and expressed unequivocal disagreement with the reported conduct when it became aware of it; it opposed all claims on the merits and opposed non-publication orders.

1. Whether the applicants are entitled to non-publication orders over their names — Status: Established (paras [7]-[9]).

The Authority applied clause 10, schedule 2 of the Employment Relations Act 2000. The applicants are early in their careers in a technical speciality in a specialised industry and a close-knit community, and their concerns about adverse future employment consequences from public identification were sincerely and reasonably held. The Authority granted non-publication orders over the applicants' names, despite the respondent's objection that the concerns were not sufficiently concrete or particularised.

2. Whether the one-on-one discussions with the senior manager constituted unjustified disadvantage by way of discrimination under ss 103(1)(c), 104, and 107 of the Act — Status: Established (paras [45]-[55]).

The Authority applied ss 103(1)(c), 104, and 107, which prohibit subjecting an employee to detriment by reason of their union membership status or involvement in union activities, including participation in strike action or acting as a delegate within 18 months of the conduct. The Authority found the senior manager was a "representative" under s 103(2) because they were employed by the respondent and held authority over the applicants; the fact that the meetings were framed as "off the record" did not negate this. The Authority accepted the applicants' unchallenged evidence that the senior manager negatively linked their union activity to career prospects, promotion, and job security — conduct directed only at union-active employees — causing tangible detriment to their confidence and job satisfaction. Applying McAlister v Air New Zealand Ltd [2009] NZSC, the Authority was satisfied union involvement was a material ingredient in the senior manager's conduct, establishing the grievance for each applicant.

3. Whether the one-on-one discussions constituted duress under s 110 of the Act — Status: Established (paras [56]-[58]).

Section 110 requires that the employer or its representative directly or indirectly threatened to withhold an advantage or impose a disadvantage with intent to induce the employee to cease union membership. The Authority found the senior manager used their position of power imbalance to exercise influence over the applicants through indirect threats to their job security and career prospects, with the purpose of inducing them to cease union activity. The respondent's argument that duress could not be established because the applicants remained in the union was rejected. The Authority cited the earlier ERA decision in Masoe v Chief Executive of New Zealand Customs Service and the authorities referenced by the respondent (NZ Educational Institute v State Services Commissioner; Eketone v Alliance Textiles) but found the elements of duress met on the accepted evidence.

4. Whether the second applicant's declined annual leave request constituted unjustified disadvantage by way of discrimination — Status: Dismissed (paras [59]-[65]).

The Authority applied the rebuttable presumption in s 119 of the Act (placing the onus on the respondent to show the decision was not discriminatory), and considered whether union involvement was a material ingredient in the leave refusal. Although the senior manager (who made the decision) did not give evidence, the Authority accepted the broader context: there was an established and general practice of not granting annual leave during the busy period in question, accepted by employees across the site. The area manager's involvement to clarify the situation was also relevant. The Authority was satisfied the respondent had rebutted the presumption; the decline was attributable to the standard leave practice, not discrimination.

5. Whether the temporary removal of work-from-home access for union members constituted unjustified disadvantage by way of discrimination under ss 103(1)(c), 104, and 107 of the Act — Status: Established (paras [66]-[71]).

The Authority applied ss 104 and 107 and the principle from Tranz Rail v Rail & Maritime Transport Union that "terms of employment" and "conditions of work" are to be broadly construed to include workplace policies. The respondent's decision to restrict work-from-home access — a discretionary policy — was applied exclusively to union members who had taken strike action. The Authority held it is not lawful to exercise a discretionary policy on a prohibited ground of discrimination; the decision was causally connected to the applicants' strike action. Although the policy change was brief, not publicly announced, and quickly reversed, the applicants' evidence of feeling singled out and the detriment to their employment conditions was accepted as clear.

6. Whether the remedies awarded should be reduced under s 124 of the Act for contributory blameworthy conduct by the applicants — Status: Dismissed (paras [74]-[75]).

Section 124 permits reduction of a remedy where the employee's blameworthy conduct contributed to the situation giving rise to the grievance. The Authority found no basis for any reduction: the applicants' involvement in lawful union activity was entirely lawful and did not constitute blameworthy conduct contributing to any of the established grievances.

7. Whether each applicant is entitled to compensation for hurt, humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Act — Status: Established (para [73]).

The Authority assessed the individual evidence of each applicant about the ongoing emotional and psychological impact of the senior manager's conduct and the policy change, finding it compelling and credible. The Authority awarded each applicant $10,000.

8. Whether either party is entitled to costs and/or disbursements — Status: Not reached (paras [77]-[79]).

Costs were reserved. The Authority encouraged the parties to resolve costs between themselves, and set a timetable for cost memoranda if agreement is not reached.

The claims were partially upheld: the personal grievances relating to the one-on-one meetings (discrimination and duress) and the work-from-home policy change were established for all four applicants; the second applicant's annual leave grievance was dismissed.

Compensation (hurt/humiliation/loss of dignity/injury to feelings): $10,000 to each of the four applicants under s 123(1)(c)(i), payable within 21 days of the determination.
Lost wages: None ordered.
Reinstatement: Not sought or ordered.
Contribution reduction: None applied.
Costs: Reserved — parties encouraged to resolve between themselves; timetable set for cost memoranda if required.

MHT, a young trainee employee, was summarily dismissed by KAZ for serious misconduct following alcohol-related behaviour during work-related travel. MHT applied for interim reinstatement pending a substantive investigation of his personal grievance claims. The Authority declined the application, finding that while an arguable case existed, the balance of convenience and overall justice favoured KAZ, primarily due to unresolved safety concerns, insufficient evidence of financial hardship, and MHT's five-month delay in seeking interim relief.

Applicant: MHT (employee)
Respondent: KAZ (employer, limited liability company)

Applicant: Fiona Dalziel, counsel for the Applicant
Respondent: Rachel Webster, counsel for the Respondent

MHT commenced employment as a paid trainee with KAZ in the Waikato region in May 2025, aged 18. He acknowledged a developing alcohol problem and sought rehabilitative support from KAZ, though he claims adequate support was not provided. In September 2025, during work-related travel to and from Hawke's Bay for a training course, MHT became significantly intoxicated and engaged in unsafe and disorderly conduct in a company vehicle, including attempting to urinate out of a moving vehicle without a seatbelt. KAZ conducted a disciplinary investigation and summarily dismissed MHT on 21 October 2025 for serious misconduct in breach of company policies and safety obligations. MHT raised a personal grievance on 1 December 2025, but did not apply for interim reinstatement until 20 March 2026 — approximately five months after dismissal. MHT argues his dismissal was unjustified because it was predetermined and KAZ failed to adequately consider rehabilitation as an alternative; KAZ argues the conduct was sufficiently serious and safety-critical to justify dismissal and that interim reinstatement poses unacceptable risks.

1. Whether the Authority should make an interim non-publication order — Status: Established (paras [5]-[10]).

The Authority declined to make a permanent non-publication order but granted an interim order under cl 10(1) of the Second Schedule to the Employment Relations Act 2000 (the Act), covering the names and identifying details of both parties. The order was granted because it concerned information (including medical information) in which there was no public interest in publication, and to preserve the status quo pending substantive determination. The Authority cautioned that a permanent order would not automatically follow and would require an evidential basis.

2. Whether there is an arguable case for unjustified dismissal — Status: Established (paras [37]-[42]).

The test is whether the claim has some serious or arguable (but not necessarily certain) prospect of success, meaning it is not frivolous or vexatious, per Western Bay of Plenty District Council v McInnes [2016] NZEmpC 36 and X and Y Limited v New Zealand Stock Exchange [1992] ERNZ 863. The Authority found the threshold was met because, at a minimum, there is a live dispute about the process KAZ adopted leading to dismissal. KAZ argued that given MHT's broad acceptance of his conduct, no arguable case existed, but the Authority could not resolve disputed procedural matters on untested affidavit evidence at this interim stage.

3. Whether there is an arguable case for permanent reinstatement — Status: Established (paras [43]-[49]).

Reinstatement is the primary remedy under s 125(2) of the Act where practicable and reasonable. The Authority applied the low threshold for an arguable case and found it satisfied, noting that it is not sufficient for an employer merely to show resistance or strained circumstances to avoid reinstatement (Angus v Ports of Auckland [2011] NZEmpC 122). The Authority observed that reinstatement can be ordered subject to conditions under s 127(5) of the Act, making it impossible to say reinstatement was out of the question if MHT established his grievance.

4. Whether the balance of convenience favours granting interim reinstatement — Status: Dismissed (paras [50]-[79]).

The Authority weighed MHT's asserted detriment (loss of on-the-job training, career progression, and proximity to family and support networks) against KAZ's concerns about resource-intensive supervision and safety risks in a safety-critical environment. The Authority found MHT had provided no evidence of his financial circumstances or efforts to seek alternative training or employment, and that a 50 km distance to an alternative provider did not constitute extraordinary hardship. MHT's five-month delay in applying was inconsistent with the urgency required for interim relief. Any detriment to MHT could, by a fine margin, be remedied through a damages award at the substantive stage.

5. Whether the overall justice of the case favours interim reinstatement — Status: Dismissed (paras [80]-[92]).

The overall justice assessment operates as a check on the serious question and balance of convenience analysis, per NZ Tax Refunds Limited v Brooks Homes Limited [2013] NZCA 90. The Authority found that MHT faces significant hurdles at the substantive stage: his conduct was sufficiently work-related to justify KAZ's safety concerns; the drug and alcohol rehabilitation programme did not displace disciplinary action for serious misconduct; and evidence from MHT's treatment provider indicated his alcohol issues were ongoing rather than fully resolved. Practicability of reinstatement requires more than mere possibility — it requires feasibility of successfully re-establishing the employment relationship (New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243, confirmed on appeal). There was no evidence that the safety concerns underpinning KAZ's loss of trust and confidence were no longer present, making interim reinstatement contrary to the overall justice of the case.

6. Whether costs should be determined — Status: Not reached (para [96]).

Costs were reserved pending the outcome of the substantive investigation of MHT's grievance application and were not determined in this interim determination.

The application for interim reinstatement was dismissed; MHT's substantive personal grievance claims remain to be investigated and determined.

None ordered at this interim stage. Costs reserved pending substantive investigation. The Authority indicated it will make arrangements to progress the substantive hearing and invited the parties within 14 days to advise whether they wish to attend further mediation.

Sophie Kennett, a Sandwich Artist/Assistant Manager employed by Polygon GY Developments Limited (a Subway franchise operator), brought claims for unjustified dismissal, constructive dismissal, unpaid wages, statutory entitlement breaches, and penalties following the termination of her employment in January 2025. The key legal questions concerned whether her employment was continuous across two leave periods engineered by her employer, whether she was unjustifiably and/or constructively dismissed, and whether statutory entitlements had been correctly calculated. The Authority found in Ms Kennett's favour on all primary claims, awarding notice pay, lost wages, hurt/humiliation compensation, unpaid wages, statutory entitlements, a penalty, and interest.

Applicant: Sophie Kennett (employee — Sandwich Artist/Assistant Manager)
Respondent: Polygon GY Developments Limited (employer — Subway franchise operator)

Applicant: Linda Ryder, advocate
Respondent: Emma Stephen, counsel

Ms Kennett commenced employment with Polygon in March 2023 as a Sandwich Artist and later moved to the Bishopdale store. In November 2023, her employer refused her leave request and, the Authority found, required her to resign effective 19 December 2023 with assurances of re-employment as Assistant Manager; she was rehired under a new employment agreement from 22 January 2024. A similar pattern emerged in December 2024: after another leave request for the new year period was declined, Ms Kennett says Mr Greene again required her to resign on 11 December 2024 during a heated confrontation, giving assurances she would return on 15 January 2025. She resigned effective 20 December 2024, and the next day received a letter notifying her that Polygon was selling the Bishopdale store; on 10 January 2025 she received a final letter confirming she would not be employed by the purchaser and that Polygon deemed her employment ended on the date of her resignation. The Authority found that Ms Kennett remained an employee after her resignation (as a "person intending to work") and was effectively dismissed on 10 January 2025 without notice, without proper consultation, and without proper redeployment consideration.

1. Whether Ms Kennett's employment was continuous across the December 2023–January 2024 period for Holidays Act purposes — Status: Established (paras [44]-[63]).

Section 85 of the Holidays Act 2003 provides that if an employer dismisses an employee and re-employs them within a month, employment must be treated as continuous. The Authority preferred Ms Kennett's evidence over Mr Greene's (finding him inconsistent and prone to providing explanations difficult to reconcile with the written record), and determined that Mr Greene required Ms Kennett to resign — not merely presenting it as an option — with a promise of an Assistant Manager role. This amounted to a dismissal at Polygon's initiative within the meaning of s 85, and Ms Kennett was re-employed on 29 December 2023 (within a month), rendering her employment continuous. The Authority cited Pinder v S & O Bayliss Limited [2022] NZERA 646 in finding that Ms Kennett's reliance on assurances of continued employment sufficed to make her a "person intending to work" and thus an employee immediately following her resignation.

2. Whether Ms Kennett was employed by Polygon beyond 20 December 2024 — Status: Established (paras [64]-[73]).

The Authority applied the s 6(1)(b)(ii) definition of "employee" under the Employment Relations Act 2000, which includes "a person intending to work" — someone who has been offered and accepted work. The Authority found, on the balance of probabilities, that Mr Greene again gave definitive assurances of re-employment in January 2025 during the 11 December 2024 confrontation, and that Ms Kennett relied on those assurances. Supporting factors included: the pattern of conduct from the prior year; the 20 December 2024 restructure letter treating Ms Kennett as a current employee with ongoing obligations; Mr Greene's non-response to Ms Kennett's 24 December 2024 email asserting her return date; and his instruction to return her key only "for the holiday period" while not requiring return of her uniform.

3. When did Ms Kennett's employment end — Status: Established (paras [74]-[76]).

The Authority found that the 6 January 2025 consultation meeting did not clearly communicate termination, as matters remained uncertain at that point. It was only the 10 January 2025 outcome letter that constituted the clear communication of termination, and Ms Kennett's employment therefore ended with immediate effect on 10 January 2025.

4. Whether Ms Kennett was unjustifiably dismissed — Status: Established (paras [77]-[99]).

The test under s 103A(2) of the Act requires an objective assessment of whether Polygon's actions were those of a fair and reasonable employer. The Authority found the dismissal both substantively and procedurally unjustified. Substantively: Polygon terminated Ms Kennett on 10 January 2025 when the sale remained conditional and uncertain (franchisee training incomplete, franchisor approval pending), meaning her position had not yet been established as ceasing to exist; and Polygon failed its redeployment obligations by not offering available Sandwich Artist roles at its other stores (citing Michael Ritson-Thomas t/a Totara Hills Farm v Hamish Davidson [2013] NZEmpC 39). Procedurally: Polygon failed to consult Ms Kennett before signing the Sale and Purchase Agreement (s 4(1A)(c) of the Act; Birthing Centre Limited v Matsas [2023] NZEmpC 162); dismissed without the four-week contractual notice period; refused to provide relevant requested information; and failed to comply with employment agreement obligations regarding the sale process.

5. Whether Ms Kennett was constructively dismissed — Status: Established (paras [100]-[107]).

The Authority applied the well-established three-limbed test from Auckland Shop Employees Union v Woolworths (NZ) Ltd (1985) 2 NZLR 372 (CA) and the Court of Appeal's requirement (from the same case) that any breach be serious enough that a substantial risk of resignation was reasonably foreseeable. The Authority found that Mr Greene presented resignation as the only viable option during a heated confrontation in which Ms Kennett felt intimidated, without allowing time for reflection or legal advice. Polygon thereby breached its duty to Ms Kennett, directly causing her resignation, and the breach was sufficiently serious that resignation was reasonably foreseeable. The Authority noted this finding was considered within the overall remedies assessment rather than attracting a separate remedy.

6. Whether Ms Kennett is owed a notice period — Status: Established (paras [108]-[111]).

Ms Kennett's employment agreement required four weeks' written notice; the only exception was serious misconduct, which was not applicable. Polygon dismissed her with immediate effect without paying notice. The Authority awarded four weeks' notice calculated at 38 hours per week at $25.65 per hour = $3,898.80 (gross), plus 3% KiwiSaver employer contributions (but not annual holiday pay, as it would not have been received if notice were paid in lieu).

7. Whether Ms Kennett is entitled to personal grievance remedies (lost wages) — Status: Established (paras [112]-[121]).

Under ss 123 and 128 of the Act, the Authority must award the lesser of actual lost remuneration or three months' ordinary time remuneration, subject to the duty to mitigate. Ms Kennett mitigated by securing new employment from 5 April 2025 (not challenged by Polygon). The Authority calculated loss from 8 February to 12 February 2025 (after the notice period), then uplifted the award to six weeks (from five days) to reflect the lost opportunity of continued employment while accounting for the realistic possibility she might have declined redeployment to a lesser role, applying the "loss of a chance" analysis from Waitakere City Council v Ioane [2004] 2 ERNZ 194. Six weeks was less than three months, so $5,848.20 (gross) was awarded; no additional annual holiday pay or KiwiSaver contributions were awarded given the compensatory/estimated nature.

8. Whether Ms Kennett is entitled to personal grievance remedies (compensation for hurt, humiliation, loss of dignity) — Status: Established (paras [122]-[125]).

The Authority assessed compensation under s 123(1)(c)(i), guided by Employment Court decisions including Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71; Waikato District Health Board v Archibald [2017] NZEmpC 132; Richora Group Ltd v Cheng [2018] NZEmpC 113; and GF v Comptroller of NZ Customs Service [2023] NZEmpC 101. Ms Kennett experienced depression, anxiety, panic attacks, and required counselling and medication. The Authority assessed moderate humiliation and awarded $19,000, reflecting the adverse impact while noting she had secured new employment.

9. Whether Ms Kennett's own conduct contributed to the personal grievance — Status: Dismissed (para [126]).

Under s 124 of the Act, the Authority must consider whether the employee's actions contributed to the grievance. The Authority found that Ms Kennett's conduct did not contribute to the grievance and therefore applied no reduction to any remedies.

10. Whether Ms Kennett is owed unpaid wages — Status: Partially established (paras [127]-[142]).

The Authority analysed each category of disputed wages. It found that: employees who work through breaks must be paid for that work; administrative failures to record hours on variance sheets do not extinguish the right to pay if the work was genuinely performed and benefited the employer; small unauthorised additional hours by a duty manager must be remunerated where the employer knew of and benefited from the work; and an employer cannot unilaterally reduce pay for approved tasks on the basis of its subjective view about reasonable duration (absent an explicit time constraint). However, the Authority accepted Polygon's position where timesheets and variance sheets showed different hours, finding it reasonable to rely on variance sheets. The Authority awarded $237.98 (gross) (9.25 underpaid hours, slightly less than Ms James' $263.63 calculation), plus 8% annual holiday pay and 3% KiwiSaver contributions.

11. Whether Ms Kennett is owed statutory entitlements under the Holidays Act — Status: Established (paras [143]-[145]).

Having found employment was continuous under s 85 of the Holidays Act, the Authority accepted Ms James' calculations (agreed by Polygon if continuity was found) and awarded $2,657.85 (gross) in outstanding statutory entitlements, plus 3% KiwiSaver employer contributions.

12. Whether Polygon is liable for penalties for Holidays Act breaches — Status: Established (paras [146]-[153]).

The Authority had jurisdiction under s 161(m)(iii) of the Act to award penalties for Holidays Act breaches. Applying Borsboom v Preet PVT Limited [2016] NZEmpC 143, the Authority treated all Holidays Act breaches (relating to annual holidays, sick leave, and public holidays) as a single course of conduct attracting a maximum penalty of $20,000. The breaches were intentional in the sense that Polygon made a deliberate choice to treat employment as two discrete periods to minimise statutory liability; Ms Kennett was vulnerable and uninformed about the consequences. A penalty of $2,000 was ordered (s 136 of the Act): 50% to Ms Kennett and 50% to the Crown. Penalties for failure to provide wage and time records were not pursued by Ms Kennett at the Investigation Meeting.

13. Whether Ms Kennett is entitled to interest on remedies — Status: Established (paras [154]-[155]).

Interest was awarded under clause 11(1) of Schedule 2 of the Act on the notice period, unpaid wages, and statutory entitlements from 10 January 2025 (date of dismissal) to the date of payment. Using 28 days from the date of determination for calculation purposes, interest of $448.22 was awarded.

14. Costs — Status: Reserved (paras [157]-[159]).

Costs were reserved. The parties were encouraged to resolve costs between themselves. If unable to do so, Ms Kennett may lodge a costs memorandum within 28 days, with Polygon having 14 days to reply. The Authority indicated it would apply the usual daily tariff basis.

The claim was substantially upheld: Ms Kennett's unjustified dismissal and constructive dismissal were established, and remedies were awarded for notice, lost wages, hurt/humiliation compensation, unpaid wages, statutory entitlements, a penalty, and interest.

- Statutory entitlements: $2,657.85 (gross) plus 3% KiwiSaver employer contributions
- Unpaid wages: $237.98 (gross) plus 8% annual holiday pay and 3% KiwiSaver employer contributions
- Notice period: $3,898.80 (gross) plus 3% KiwiSaver employer contributions
- Lost wages: $5,848.20 (gross)
- Compensation (hurt, humiliation, loss of dignity): $19,000
- Penalty: $2,000 (50% = $1,000 to Ms Kennett; 50% = $1,000 to the Crown)
- Interest: $448.22
- Costs: Reserved
- All payments due within 28 days of the determination
- Reinstatement: Not ordered

Rakai Tawhiwhirangi, a Principal Corrections Officer at Arohata Prison, was dismissed on 19 July 2024 following an employment investigation into his use of force on a female prisoner (NWM) on 28 April 2021 and his failure to report the incident. Mr Tawhiwhirangi had previously been acquitted of common assault in the District Court on grounds of self-defence arising from the same incident. The Authority found his dismissal was unjustified because Corrections effectively re-litigated the District Court's factual findings, failed to clearly identify remaining policy breaches as serious misconduct independently of those findings, and used a decision-maker with a conflict of interest; however, reinstatement was declined as impracticable and unreasonable, and remedies were reduced by 15% for Mr Tawhiwhirangi's contributory conduct.

Applicant: Rakai Tawhiwhirangi (employee, Principal Corrections Officer)
Respondent: The Chief Executive of the Department of Corrections (employer)

Applicant: Barbara Buckett and Lucy Fisher, counsel for the Applicant
Respondent: David Traylor, Lewis Miller and Nikki Farrell, counsel for the Respondent

Mr Tawhiwhirangi had worked for Corrections for approximately 40 years and on 28 April 2021 struck prisoner NWM once in the throat area at Arohata Prison to prevent her spitting at him. No incident report was filed following the incident. Corrections commenced an employment investigation in May 2021, which was paused pending a criminal prosecution; the District Court acquitted Mr Tawhiwhirangi of common assault on 25 May 2023 based on self-defence (finding his pre-emptive action was not disproportionate). The employment investigation resumed and, on 19 July 2024, Corrections dismissed Mr Tawhiwhirangi finding he had used unjustified and/or unreasonable force and had failed to report the incident, treating both as serious misconduct under the Code of Conduct and Corrections Act 2004. Mr Tawhiwhirangi argued his dismissal was both substantively and procedurally unjustified, primarily because Corrections ignored the District Court finding that his use of force was lawful and proportionate; Corrections maintained its investigation was distinct from the criminal process and focused on compliance with its own policies and procedures.

1. Whether Mr Tawhiwhirangi's dismissal was unjustified under s 103A of the Employment Relations Act 2000 — Status: Established (paras [51]-[96]).

The Authority applied the s 103A objective test of what a fair and reasonable employer could have done in all the circumstances. Corrections' dismissal was found unjustified on three main grounds: (a) Corrections said it would not rely on the District Court findings but in fact reconsidered the same factual matrix (lawfulness of force, proportionality, whether hoicking sounds were made, whether NWM was about to spit) and reached opposite conclusions, which it could not fairly do given those findings; (b) Corrections failed to separately and clearly identify which remaining policy breaches — independent of the application of force — reached the threshold of serious misconduct; and (c) the decision-maker Ms Carey had a direct evidential conflict with Mr Tawhiwhirangi about his presence in the Receiving Office, raising a perception of bias or pre-determination that a large organisation like Corrections could have avoided. The Authority also noted that "atawhai" conduct was taken into account despite not forming part of the formal allegations. Authorities cited include Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160 and NZ Engineering Union v Fletcher Construction Ltd [1989] 3 NZILR 279.

2. Whether an unjustified disadvantage personal grievance was established (flawed investigation report and conflation of investigation/disciplinary processes) — Status: Not reached (para [96]).

Having found the dismissal unjustified, the Authority recorded it was unnecessary to consider the separate disadvantage grievances, noting they overlapped substantially with the dismissal claim; a globalised compensation figure was awarded instead.

3. Whether Corrections breached the Collective Agreement — Status: Dismissed (paras [132]-[135]).

Mr Tawhiwhirangi sought damages for failures to comply with the Collective Agreement, including not recognising Māori cultural implications (cl 1.5.2(d)) and delivering the final decision by email rather than in person. The Authority found very little evidence of a breach of the cultural recognition clause; and to the extent any other breach existed, a separate damages award would not be appropriate as the compensation award already addressed the same factual matrix.

4. Whether Corrections breached its statutory obligation of good faith under ss 3 and 4 of the Act — Status: Partially established (paras [80], [96], [139]).

The Authority found good faith breaches were identifiable within the broader findings of unjustified dismissal and disadvantage. However, no penalty was awarded under s 4A because the breaches were not found to be deliberate, serious, or sustained — they arose from an investigation that could not have been avoided once circumstances came to light, and most of the delay was attributable to Mr Tawhiwhirangi's own exercise of his right to silence.

5. Whether reinstatement should be ordered — Status: Dismissed (paras [97]-[124]).

Reinstatement is the primary remedy under the Act, requiring it to be both practicable and reasonable (Hong v Auckland Transport [2019] NZEmpC 54; Vegepod NZ Limited v Lowe [2025] NZEmpC 76; Genesys Telecommunications Laboratories Ltd v Scott [2019] NZEmpC 113). The Authority declined reinstatement, weighing: approximately five years' absence from the workplace (cf. Gumbeze v Chief Executive of Oranga Tamariki [2024] NZEmpC 133); a major policy shift toward trauma-informed practice and a target female/male staff ratio at Arohata; no vacant PCO roles nationally; spontaneous comments during the investigation raising concerns about Mr Tawhiwhirangi's attitudes toward female prisoners (including telling NWM she "should have known better" about being a battered woman and an earlier "went to slap her" comment); and his failure to report the incident. The Authority found reinstatement would not be workable or reasonable despite Mr Tawhiwhirangi's willingness to retrain.

6. Whether compensation for hurt, humiliation, loss of dignity and injury to feelings should be awarded under s 123(1)(c)(i) — Status: Established (paras [125]-[131]).

A globalised award was considered appropriate given the overlap between the two disadvantage grievances and the dismissal grievance. The Authority accepted Mr Tawhiwhirangi's evidence of significant personal impact — withdrawal from social life, anxiety, financial strain, weight loss, sleep disruption, and the end of a long career — though the total distress was not entirely attributable to Corrections (part was attributable to the length of the criminal process which benefited Mr Tawhiwhirangi). A moderate award in Band 2 of the scale set out in GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101 was appropriate; $20,000 before contribution reduction.

7. Whether lost wages should be awarded under ss 123(1)(b) and 128 of the Act — Status: Established, limited to three months (paras [136]-[137]).

The Authority awarded lost wages equivalent to three months' ordinary time remuneration, declining to exercise the discretion to order a greater amount. The investigation took a long time but no circumstances arose tending to show losses beyond the three-month cap were caused by the unjustified dismissal itself.

8. Whether loss of monetary benefits (retirement/long service leave) should be awarded — Status: Not reached/Withdrawn (para [138]).

This claim was withdrawn by Mr Tawhiwhirangi on the basis retirement leave had been paid out at the end of his employment.

9. Whether a penalty should be awarded against Corrections for breach of good faith under s 4A of the Act — Status: Dismissed (para [139]).

The Authority held that while good faith breaches can arise where an employer has not acted fairly during an investigation, s 4A requires the breaches to be deliberate, serious, and sustained. The breaches here were not deliberate or sustained; the investigation was necessary once circumstances became known, and most delay was not attributable to Corrections. No penalty was awarded.

10. Whether an award of damages should be made against Corrections for breaches of contract — Status: Dismissed (paras [132]-[135]).

The claim for contractual damages based on non-compliance with the Collective Agreement and failure to provide a safe workplace and recognise Māori cultural implications was not supported by sufficient evidence. Any overlap with the unjustified dismissal remedies meant a separate damages award was not appropriate.

11. Whether interest should be awarded — Status: Not reached/Not determined.

Interest was listed as an issue but no express determination or award of interest was made in the determination.

12. Whether remedies should be reduced for Mr Tawhiwhirangi's contributory conduct under s 124 of the Act — Status: Established at 15% (paras [140]-[163]).

The Authority applied the four-step approach from Sheridan v Pact Group [2026] NZEmpC 51 (citing Maddigan v Director-General of Conservation [2019] NZEmpC 190). Mr Tawhiwhirangi's blameworthy contributions included: putting himself in NWM's personal space rather than using de-escalation strategies available under Corrections' policies; failing to consider alternatives (spit hood, stepping back, body-worn cameras); and failing to report the use of force, which prevented a mandatory medical assessment and triggered none of the required post-incident steps. Although his spontaneous force was found lawful, his conduct before and after departed from policy and training. A 15% reduction was applied to both remedies, noted as less than the 25% threshold described as "significant" in Maddigan.

13. Whether non-publication orders should be made in respect of Mr Tawhiwhirangi's name — Status: Dismissed (paras [164]-[171]).

Applying the test from MW v Spiga Limited [2024] NZEmpC 147, the Authority declined permanent non-publication of Mr Tawhiwhirangi's name. The adverse consequences advanced (privacy, employment prospects, safety, stigma) were general assertions rather than specific consequences. Crucially, there was no name suppression in the District Court, and the determination necessarily referred to that judgment — making a non-publication order futile (citing AJH v Fonterra Co-Operative Group Ltd [2021] NZEmpC 111 and Crimson Consulting Ltd v Berry [2017] NZEmpC 94).

14. Whether non-publication orders should be made in respect of NWM, GQF and other Corrections employees who did not give evidence — Status: Established (paras [1], [164], [172]-[173]).

Permanent non-publication orders were made for the prisoner NWM, Corrections Officer GQF, and all other Corrections employees who were named in evidence but did not give evidence. The public interest in open justice was outweighed by the privacy and confidentiality interests of persons peripheral to the employment dispute who were not parties to it.

15. Whether costs should be awarded — Status: Reserved (para [164] (costs paragraph, mis-numbered in determination as [164]-[166])).

Costs were reserved. The parties were encouraged to resolve costs between themselves, with a memorandum procedure set out if agreement cannot be reached, to be determined on the Authority's usual daily tariff basis.

The claim was partially upheld: unjustified dismissal was established, reinstatement was declined, compensation and lost wages were awarded subject to a 15% contributory reduction, and penalty, damages, and non-publication orders for Mr Tawhiwhirangi were dismissed.

Compensation under s 123(1)(c)(i) (hurt, humiliation, loss of dignity): $20,000 less 15% contribution reduction = $17,000.00
Lost wages under ss 123(1)(b) and 128: three months at $7,773.50/month = $23,320.50 less 15% contribution reduction = $19,882.50 (approximately $19,882.42 per footnote 37)
Reinstatement: No
Loss of monetary benefits: Nil (withdrawn)
Damages for breach of contract: Nil
Penalty for good faith breach: Nil
Interest: Not determined
Costs: Reserved — parties to negotiate; if unresolved, memorandum procedure applies; Authority will apply usual daily tariff
Non-publication: Permanent non-publication orders for NWM, GQF and other non-testifying Corrections employees; application for non-publication of Mr Tawhiwhirangi's name declined
All monetary remedies payable within 28 days of the determination.

Nathan Crisp (employee) applied to reopen an earlier Employment Relations Authority investigation and determination dated 3 April 2025, in which he had succeeded on an unjustified disadvantage claim but failed on a constructive dismissal claim. The key legal question was whether any of his five stated grounds met the threshold for reopening under Schedule 2, clause 4 of the Employment Relations Act 2000. The application was granted in part — only with respect to costs, which had not been reserved or addressed in the original determination — while all other grounds for reopening were dismissed.

Applicant: Nathan Crisp (employee)
Respondent: Malcove Distributors Limited (employer)

Applicant: Laura Trethewey, advocate
Respondent: Danny Gelb, advocate

Nathan Crisp was employed by Malcove Distributors Limited (MDL) as an operations coordinator. In the original determination dated 3 April 2025 ([2025] NZERA 191), the Authority upheld Mr Crisp's claim of unjustified disadvantage arising from MDL's restructuring process and awarded $7,000 compensation for hurt and humiliation, plus reimbursement of the filing fee; however, his claim of constructive and unjustified dismissal was unsuccessful. MDL had not paid the amounts ordered as at the date of this determination. Mr Crisp applied to reopen the investigation on five grounds: (1) errors in the determination of notice pay and wage arrears; (2) alleged failure to address Holidays Act 2003 breaches; (3) alleged failure to consider redeployment and advertised roles in the context of constructive dismissal; (4) alleged application of the incorrect legal test for constructive dismissal; and (5) the adequacy of the $7,000 compensation award. MDL opposed reopening, submitting the threshold had not been met and the application was an impermissible attempt to relitigate. The matter was determined on the papers following a case management conference.

1. Whether the threshold for reopening the investigation under Schedule 2, clause 4 of the Employment Relations Act 2000 is met — Status: Partially established (paras [7]-[18]).

The Authority applied the framework from the Employment Court, requiring the overriding consideration to be the interests of justice, including whether there is an actual or real and substantial risk of a miscarriage of justice (not merely a possibility), and confirming that rehearing jurisdiction is not to be exercised to re-agitate arguments already considered. Citing Young v Board of Trustees of Aorere College [2013] NZEmpC 111, Idea Services Ltd v Barker [2013] NZEmpC 24, and Davis v Commissioner of Police [2015] ERNZ 27, the Authority found that the threshold was met on the costs ground only, as costs had not been reserved or addressed in the original determination despite Mr Crisp being a successful represented party; all other grounds failed to establish a real or substantial risk of miscarriage of justice.

2. Ground 1 — Whether the original Member's error in recording "no evidence" of Mr Crisp seeking notice pay warranted reopening — Status: Dismissed (paras [8]-[9]).

The Authority acknowledged the Member had incorrectly recorded that there was no evidence of Mr Crisp querying notice pay (an email at page 58 of the Common Bundle contradicted this), but found the error was not fatal and did not lead to a miscarriage of justice. The determination of notice pay was one of contractual entitlement, and the Member's interpretation of clause 21 of the employment agreement — that Mr Crisp was not entitled to payment of one month's notice — was objectively and reasonably made and consistent with the contract terms.

3. Ground 2 — Whether the original determination failed to adequately address Holidays Act 2003 breaches — Status: Dismissed (paras [10]-[11]).

The Authority found there was sufficient engagement with this issue in the original determination: the Member identified holiday pay arrears as an issue for investigation and acknowledged a "payroll anomaly" that had been rectified by the company. The characterisation of the matter as an anomaly indicated the Member considered any statutory breach to be unintentional and at the lower end of the spectrum of seriousness. The mere possibility of a miscarriage of justice was insufficient to reopen this ground.

4. Ground 3 — Whether the original determination failed to consider redeployment and advertised roles in relation to the constructive dismissal claim — Status: Dismissed (para [12]).

The Authority found this ground was essentially a second attempt at Mr Crisp's unsuccessful constructive dismissal claim. The Member had considered and determined that constructive dismissal had not been established, and this ground amounted to an impermissible re-agitation of arguments already decided.

5. Ground 4 — Whether the original Member applied the incorrect legal test for constructive dismissal — Status: Dismissed (para [13]).

The Authority found this ground was without merit, noting the Member had explicitly footnoted the leading Court of Appeal authority on constructive dismissal — Auckland Shop Employees Union IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 — and referred to the three potential situations in which constructive dismissal could occur (pp 374–375). The Member had committed approximately 16% of the determination to this issue before concluding it was not established.

6. Ground 5 — Whether the $7,000 compensation award for hurt and humiliation was inadequate — Status: Dismissed (para [14]).

The Authority found the $7,000 award was well within the range for similar circumstances of disadvantage, taking into account that the award related to how MDL's restructuring process had disadvantaged Mr Crisp and ultimately led him to take sick leave. The Member's reference to "similar cases" reflected his knowledge of Authority awards in comparable circumstances.

7. Whether costs should be reopened and addressed — Status: Established (paras [15]-[16], [19]).

The Authority found that costs are ordinarily reserved at the conclusion of an investigation meeting, but this had not occurred in the original determination for reasons that were unclear. As Mr Crisp was represented and was the successful party on the unjustified disadvantage claim, the general principle that costs follow the event applied. The investigation was reopened solely to address costs.

8. Whether the Authority will consider a compliance order in respect of unpaid amounts from the original determination — Status: Conditional (para [18]).

The Authority noted the original monetary awards remained unpaid, described this as unsatisfactory, and indicated it would consider any application for a compliance order by Mr Crisp. No compliance order was made at this stage.

The application to reopen was partially upheld — granted solely on the issue of costs; all five substantive grounds for reopening were dismissed.

Costs: Reserved. The Authority indicated a starting point of $2,250 (one half of the notional tariff for a one-day investigation meeting), subject to upward or downward adjustment. No costs order has been made yet.
Compliance order: Not yet made; the Authority indicated it will consider any application by Mr Crisp for a compliance order regarding the unpaid amounts from the original determination ($7,000 compensation plus filing fee reimbursement).
No other remedies ordered in this determination.

Workers First Union Incorporated and the New Zealand Public Service Association (the unions) applied to the Employment Relations Authority under s 50B of the Employment Relations Act 2000 for urgent referral to facilitation in respect of their collective bargaining with IAG New Zealand Limited. The central legal question was whether one of the statutory grounds under s 50C(1) — specifically that bargaining had been unduly protracted and extensive efforts including mediation had failed — was made out. The Authority was satisfied the ground was established and ordered the parties to engage in facilitation.

Applicant: Workers First Union Incorporated (union) and New Zealand Public Service Association Te Pūkenga Here Tikanga Mahi Incorporated (union)
Respondent: IAG New Zealand Limited (employer)

Applicant: Grace Liu, counsel for the Applicants
Respondent: Kylie Dunn, advocate for the Respondent

WFU, the PSA, and IAG are parties to a collective agreement that expired on 31 March 2025. IAG initiated bargaining for a replacement collective agreement on 4 March 2025, with claims exchanged and a bargaining process agreement entered into in late November 2025. The parties attended multiple bargaining sessions from November 2025 onward, as well as two rounds of mediated bargaining in April and May 2026, but were unable to reach a new collective agreement. Significant difficulties arose regarding a proposed trial period and the coverage of the proposed collective agreement. The unions applied for urgent referral to facilitation under s 50B of the Act, relying solely on their statement of problem without affidavit evidence; IAG did not oppose the application and supported facilitation. All parties agreed the matter could be resolved on the papers without an in-person hearing or submissions.

1. Whether the ground under s 50C(1)(b) of the Employment Relations Act 2000 — that bargaining has been unduly protracted and extensive efforts (including mediation) have failed to resolve the difficulties — is made out, justifying referral to facilitation — Status: Established (paras [14]-[22]).

The Authority must be satisfied that one of the statutory grounds under s 50C(1) of the Act is made out before accepting a reference to facilitation. The Authority applied the test from McCain Foods (NZ) Limited v Service & Food Workers Union Nga Ringa Tota Inc [2009], which held that "undue protraction" means excessive or disproportionate protraction as opposed to reasonable or expected protraction, and also that bargaining may be unduly protracted where strongly held positions have precluded settlement despite real attempts to bargain. The Authority further drew on Service & Food Workers Union Nga Ringa Tota Inc v Sanford Limited [2012], which held that the facilitation provisions should be interpreted to encourage and assist collective bargaining and timely settlement, and that the Authority should not be astute to find reasons to refuse referral where a commonsense assessment indicates its desirability. The Authority was satisfied that bargaining had been ongoing for approximately 15 months, extensive efforts including two mediations had failed, and the s 50C(1)(b) ground was made out.

2. Costs — Status: Not reached (para [25]).

The Authority noted that its presumption with referrals to facilitation, per the Authority's Practice Direction (February 2024), is that parties bear their own costs. No costs order was made and the matter was not further addressed.

The application for referral to facilitation was upheld in full; the parties are ordered to engage in facilitation.

Reinstatement: No.
Compensation: None ordered.
Facilitation order: The parties are ordered to engage in facilitation (to be conducted by a different Authority Member) to assist in reaching a settlement of their new collective agreement. A case management conference is to be convened as soon as possible to arrange urgent facilitation.
Costs: None ordered; each party to bear its own costs per the Authority's Practice Direction.

James Gates, a Traffic Controller (STMS) employed by Fulton Hogan Limited since March 2020, raised personal grievances of unjustified disadvantage and unjustified dismissal following two suspensions on full pay, a final written warning, and summary dismissal in August 2023, all arising from complaints of inappropriate sexual conduct made by co-workers. The key legal questions were whether each of Fulton Hogan's actions (suspensions, warning, and dismissal) met the justification standard under s 103A of the Employment Relations Act 2000, and whether the pay received during suspension was adequate. The Authority dismissed all of Mr Gates' claims, finding that Fulton Hogan acted as a fair and reasonable employer throughout, and that the dismissal was justified.

Applicant: James Gates (employee)
Respondent: Fulton Hogan Limited (employer)

Applicant: Anjela Sharma, advocate
Respondent: Kirsty McDonald and Bridget Craig, counsel

James Gates was employed full-time as a Traffic Controller (STMS) by Fulton Hogan in Nelson from March 2020, working under a collective agreement and company policies, and had no prior disciplinary history. In February 2023, multiple female co-workers made written complaints of inappropriate sexual conduct against him; he was suspended on full pay, an investigation was conducted by HR manager Nicole McBreen, and a final written warning was issued on 2 May 2023 following a disciplinary process. In late June 2023, a further complaint of sexual harassment was made by a younger co-worker (referred to as OTO); Mr Gates was again suspended on full pay, a second investigation was conducted by HR manager Tony McCabe, and he was summarily dismissed on 4 August 2023. Mr Gates raised personal grievances claiming the suspensions, investigation processes, warning, and dismissal were all unjustified, and also claimed he was not paid "full pay" during his suspensions (as overtime and shift loadings were excluded). Separately, evidence emerged that Mr Gates had commenced employment with a competitor before his dismissal took effect. A penalties claim for breach of good faith was withdrawn by Mr Gates during submissions.

1. Whether the personal grievance claims relating to the first suspension and the first investigation were raised in time — Status: Established as properly before the Authority (paras [131]-[133]).

Under s 114 of the Employment Relations Act 2000, a grievance must be raised within 90 days of the act alleged to cause it, unless the employer consents or leave is granted. Mr Gates raised his grievances about the first suspension and investigation on 28 July 2023, which was out of time relative to those events. However, Fulton Hogan responded substantively both before and after lodgement without raising a timeliness objection; the Authority found Fulton Hogan had impliedly consented to those claims being raised out of time, and treated them as properly before the Authority for determination.

2. Whether the first suspension (27 February 2023) was justified — Status: Established (paras [33]-[35], [134]-[135]).

The justification standard under s 103A requires assessment of whether the employer's actions and how it acted were what a fair and reasonable employer could have done in all the circumstances. The collective agreement permitted paid suspension where an employee was alleged to be guilty of serious misconduct; the allegations of inappropriate sexual conduct met that threshold. The Authority found that Fulton Hogan gave adequate notice of the proposed suspension, provided opportunity to respond at the 27 February meeting, and that Mr Gates agreed to the suspension. No substantive unfairness arose from the process, including the timing of notification or the absence of copies of all statements before the meeting. The first suspension was justified.

3. Whether Fulton Hogan paid "full pay" during the suspensions — Status: Dismissed (paras [136]-[144]).

Mr Gates argued he was not paid "full pay" because he was paid only his base 40-hour rate without overtime or shift loading, which he regularly earned. The Authority considered the collective agreement, which guaranteed 40 hours per week but gave no entitlement to overtime or discretionary shift work. Relying on Mr Stobie's evidence that overtime was offered based on business needs, not as an entitlement, the Authority found that Fulton Hogan was required to pay only 40 hours at the ordinary hourly rate while suspending on full pay. Idea Services v Dickson [2011] NZCA 14 was distinguished as inapplicable. Whether framed as a personal grievance under s 103(1)(b) or as a wages arrears claim, the claim for additional pay during suspension failed.

4. Whether the first investigation process was fair — Status: Established (finding in favour of Fulton Hogan) (paras [145]-[159]).

The Authority applied the s 103A framework, which requires sufficient investigation, raising of concerns, reasonable opportunity to respond, and genuine consideration of the employee's explanation. Mr Gates challenged the use of multiple actors in the investigation and disciplinary process, Ms McBreen's suitability as investigator, inadequate credibility resolution, and the treatment of a witness as a complainant. The Authority rejected all challenges: multiple actors with defined roles is not inherently unfair; Ms McBreen was independent and not disqualified by her earlier role in the suspension; she considered both supporting and contradictory evidence; and the "morphing" complainant's status was apparent to Mr Gates through the interview materials. Citing Whanganui College Board of Trustees v Lewis [2000] 1 ERNZ 397 at [20], the Authority held Fulton Hogan was entitled to prefer some accounts over others having taken a reasonable course. The investigation and reliance on the report were what a fair and reasonable employer could have done.

5. Whether the final written warning (2 May 2023) was justified — Status: Established (finding in favour of Fulton Hogan) (paras [145]-[159]).

The Authority found that Mr Stobie correctly set out the three substantiated allegations, met with Mr Gates, gave him a genuine opportunity to respond, considered his explanations (which were the same as those given during the investigation), and decided on a final written warning rather than dismissal given Mr Gates' positive work history and lack of prior discipline. The allegations of physical sexual conduct, displaying a photograph of his penis, and making inappropriate sexual innuendo were each found to have been substantiated through a process meeting the fair and reasonable employer standard. The warning was justified.

6. Whether the second suspension (27 June 2023) was justified — Status: Established (finding in favour of Fulton Hogan) (paras [160]-[163]).

The collective agreement again provided contractual authority for paid suspension upon allegations of serious misconduct. Following Sefo v Sealord Shellfish Ltd (2008) 5 NZELR 407 at [38], an employer must tell the employee of the possibility of suspension, the grounds, and offer an opportunity to persuade against it. The Authority found Fulton Hogan did precisely that on 26 June (alerting Mr Gates and scheduling the meeting) and 27 June (meeting with Mr Stobie at which Mr Gates agreed to the suspension). Mr Gates' argument that he had been suspended the day before and the second meeting was unnecessary was rejected based on contemporaneous documentary evidence. The second suspension was justified.

7. Whether the claim that Fulton Hogan failed to provide body cameras contributed to the second suspension and dismissal — Status: Dismissed (paras [73]-[74], [80]).

Mr Gates argued that Fulton Hogan's failure to supply him with a body camera after the first warning left him vulnerable to false allegations. The Authority found that Fulton Hogan trialled body cameras only for protection from motorists, not to monitor employee interactions, and that use for the latter purpose would raise additional issues. Critically, the second complaint was not a false complaint, and Fulton Hogan's rostering and equipment decisions did not cause the second suspension or dismissal. The claim had no merit.

8. Whether the second investigation process was fair — Status: Established (finding in favour of Fulton Hogan) (paras [165]-[170]).

Mr Gates argued the second investigation failed to resolve inconsistencies, relied on mixed evidential material, was biased, and failed to engage with issues he raised. The Authority found that Mr McCabe conducted a thorough investigation: he found OTO credible, corroborated by contemporaneous messages; he investigated Mr Gates' set-up theory and found no evidence; and he dealt with all issues raised by Mr Gates and his lawyer. Mr McCabe's earlier involvement in the suspension did not disqualify him. His conclusions and reasoning met the fair and reasonable employer standard under s 103A.

9. Whether the dismissal on 4 August 2023 was justified — Status: Established (finding in favour of Fulton Hogan) (paras [164]-[174]).

Mr Stobie relied on Mr McCabe's report, raised concerns with Mr Gates, gave him a reasonable opportunity to respond through his lawyer, genuinely considered his explanations, and then dismissed him summarily. The Authority found the conduct towards OTO (unwelcome touching, tying her shoe-laces without invitation, use of terms of endearment) constituted sexual harassment under Fulton Hogan's code of conduct and, taken together with the recent final written warning, amounted to serious misconduct. The submission that the dismissal was invalid because the final warning was "unsafe" was rejected as the warning had been found justified. The dismissal was justified.

10. Whether Mr Gates was awarded any remedy for loss of alleged promotion opportunity — Status: Dismissed (para [20]).

The Authority found that evidence did not establish that Fulton Hogan had offered, and Mr Gates had accepted, a promotion. Accordingly, any remedies (had they been ordered) would have been assessed on his actual agreed terms and conditions, without reference to a possible promotion. The point was moot given the overall dismissal of all claims.

11. Whether Fulton Hogan should be penalised for breaches of the duty of good faith — Status: Not reached (para [5]).

Mr Gates originally sought penalties against Fulton Hogan for alleged breaches of the duty of good faith. He withdrew this claim during submissions, so the Authority did not address it.

12. Non-publication orders for complainants/witnesses — Status: Established (paras [7]-[9]).

The Authority made a non-publication order prohibiting publication of the names and images of Fulton Hogan employees interviewed as complainants or witnesses during the two investigations. The complainants and witnesses are not parties to the proceedings; there is no public interest in their identification and a risk of harm if identified. A separate application for non-publication of specific evidence given by a witness was declined as unnecessary, as that evidence was not referred to in the determination and no publication risk had been identified.

The claim was dismissed in full; Fulton Hogan's suspensions, final written warning, and summary dismissal were all found to be justified, and Mr Gates has no personal grievance against Fulton Hogan.

None ordered. Costs are reserved; Fulton Hogan may lodge a costs memorandum within 28 days of the determination, and Mr Gates will then have 14 days from service to respond.

Jaspreet Kaur, a Kitchen Hand employed by Patel Catering Limited (In Liquidation), brought claims against her employer and its director (Chaitali Patel) and another individual (Nikunj Patel) for unpaid wages, various employment entitlements, and an unlawful employment premium of $25,000 charged to her as a condition of employment. The key legal questions were whether monies were owed for wage arrears and other entitlements, whether an unlawful premium was sought and received, and whether the individual respondents could be held personally liable for the employer's breaches. The claims were substantially upheld: Patel Catering and Chaitali Patel were found jointly and severally liable for the wage and premium claims, and Chaitali Patel was ordered to pay a penalty of $4,000; Nikunj Patel was absolved of liability.

Applicant: Jaspreet Kaur (employee)
Respondent: Patel Catering Limited (In Liquidation) (First Respondent/employer); Chaitali Patel (Second Respondent/sole director and shareholder); Nikunj Patel (Third Respondent)

Applicant: Susanne Lass, advocate/counsel for the Applicant
Respondent: No appearance

Ms Kaur arrived in New Zealand in August 2023 on a visitor's visa and applied for a Kitchen Hand role with Patel Catering Limited. The respondents agreed to employ her and obtain an Accredited Employer Work Visa, but demanded a payment of $25,000 as a condition of doing so, evidenced by a WhatsApp message from Chaitali Patel. Ms Kaur paid approximately $28,527 in total by cash, bank transfer, and credit card. Her employment agreement, signed in January 2024, provided for 30 guaranteed hours per week at $29.70 per hour, but Ms Kaur was consistently underpaid — the respondents used a lower hourly rate, recorded unpaid leave she had not agreed to, and at times directed her to return wages in cash. Ms Kaur was dismissed on 19 February 2025 without the contractual two weeks' notice, and Patel Catering entered liquidation on 21 July 2025. The respondents filed no Statement in Reply, provided no wages or time records, and their requests for adjournment were declined; only the applicant presented evidence at the investigation meeting.

1. Whether Ms Kaur is owed wage arrears — Status: Established (paras [33]-[35], [44]).

The Employment Agreement guaranteed a minimum of 30 hours per week at $29.70 per hour. Ms Kaur gave evidence, supported by payslips, bank statements and IRD records, that she was not paid for all hours worked, that a lower hourly rate was used, and that unpaid leave was recorded without her agreement. Under s 132 of the Employment Relations Act 2000 (the Act), the Authority drew adverse inferences from the respondents' failure to provide wages and time records. The Authority accepted Ms Kaur's detailed calculation and found wage arrears were owed as part of the composite sum of $19,397.29 gross.

2. Whether Ms Kaur is owed sick leave entitlement — Status: Established (paras [36]-[37], [44]).

Ms Kaur was absent due to illness from 27 January 2025 and provided medical evidence. She claimed 10 days' sick leave calculated at the contractual minimum of 30 hours per week at $29.70, equating to $1,782.00 gross. The Authority accepted this entitlement as part of the composite award of $19,397.29 gross.

3. Whether Ms Kaur is owed payment in lieu of notice — Status: Established (paras [38], [44]).

The Employment Agreement provided for two weeks' notice, which was not given upon dismissal on 19 February 2025. The contractual notice entitlement was calculated at $1,782.00 gross. The Authority included this in the composite award.

4. Whether Ms Kaur is owed public holiday entitlements — Status: Established (paras [39]-[41], [44]).

Under the Holidays Act 2003, an employee who works on a public holiday is entitled to payment at not less than time and a half, plus a day in lieu if the day would otherwise have been a working day. Ms Kaur was paid only $14.85 per hour for Matariki (half her contractual rate) and worked one hour on 1 January 2025 without proper payment. The Authority awarded $114.35 plus $178.20 in public holiday entitlements as part of the composite award.

5. Whether Ms Kaur is owed holiday pay — Status: Established (paras [42]-[44]).

Taking into account all wages and entitlements that should have been paid, accrued holiday pay was calculated at $3,587.59 gross. The Authority accepted this figure as part of the composite award of $19,397.29 gross.

6. Whether the respondents breached s 12A of the Wages Protection Act 1983 by seeking and receiving an unlawful employment premium — Status: Established (paras [50]-[58]).

Section 12A(1) of the Wages Protection Act 1983 (WPA) prohibits an employer from seeking or receiving any premium in respect of employment. Ms Kaur's evidence was that she paid approximately $28,527 in total, with the WhatsApp message of 7 December 2023 from Ms Patel directly evidencing a demand for $25,000. The Authority found the $25,000 demand and receipt proven. The additional $3,527.65 credit card payment was not supported by evidence of a further demand and was not awarded. The Authority ordered recovery of $25,000 as a debt under s 12A(2) of the WPA.

7. Whether interest is payable on the amounts owed — Status: Established (paras [45]-[49]).

Interest is payable in accordance with Schedule 2 of the Interest on Money Claims Act 2016 to reimburse Ms Kaur for the loss of use of monies to which she had established entitlement. The Authority ordered interest on all amounts from the date of dismissal (19 February 2025) until paid in full.

8. Whether Chaitali Patel (Second Respondent) is personally liable for the employer's breaches of minimum employment standards — Status: Established (paras [59]-[64]).

Under s 142W of the Act, a person is involved in a breach if they have been knowingly concerned in or party to a breach of employment standards. Under s 142Y(2)(b), such a person may be ordered to meet the remedies to the extent the employer is unable to pay. The Authority found that Ms Patel, as sole director and shareholder, was knowingly concerned in all breaches of minimum employment standards and in the failure to pay entitlements correctly. Because Patel Catering is in liquidation and unable to pay, the Authority ordered Patel Catering and Ms Patel to be jointly and severally liable for all awarded sums including interest.

9. Whether Nikunj Patel (Third Respondent) is personally liable for the employer's breaches — Status: Dismissed (paras [63], [70]).

There was insufficient evidence that Nikunj Patel was a director or was knowingly concerned in the breaches of minimum employment standards. The Authority therefore declined to hold him personally liable and made no orders against him.

10. Whether a penalty should be imposed for breaches of the Employment Agreement and, if so, in what amount — Status: Established (paras [65]-[73]).

Under s 133A of the Act and the principles from Borsboom v Preet PVT Limited and Warrington Discount Tobacco Limited [2016] NZEmpC 143, penalties are punitive in nature and must reflect the seriousness of the breach, not compensate the applicant. The Authority found multiple identified breaches by Ms Patel as sole director: failing to pay wages when due, failing to pay contractual minimum hours, recording unpaid leave without agreement, failing to pay notice pay, and failing to provide records. The Authority imposed a penalty of $4,000 on Ms Patel personally, payable to the Crown Bank Account.

11. Whether any part of the penalty should be paid to Ms Kaur — Status: Dismissed (para [74]).

The Authority noted that Ms Kaur's losses had been recognised and compensated through the remedies ordered. As the purpose of penalties is deterrence and punishment rather than compensation, no part of the $4,000 penalty was directed to Ms Kaur.

12. Whether Ms Kaur is entitled to recovery of the filing fee — Status: Established (para [75]).

The Authority ordered Ms Patel to pay Ms Kaur the filing fee of $71.55.

13. Costs — Status: Not reached (paras [76]-[78]).

Costs were reserved pending negotiation between the parties. A timetable was set for costs memoranda if the parties could not agree: Ms Kaur may lodge a memorandum within 28 days; Ms Patel may reply within 14 days of service.

The claims were substantially upheld: wage and entitlement arrears, the unlawful employment premium, interest, a penalty against Chaitali Patel, and the filing fee were all ordered; the claim against Nikunj Patel was dismissed; costs were reserved.

- Wage arrears, sick leave, unpaid notice, public holiday entitlements, and holiday pay (composite): $19,397.29 gross (Patel Catering, with Ms Patel jointly and severally liable to the extent Patel Catering is unable to pay).
- Employment premium (s 12A WPA): $25,000.00 (same liability structure as above).
- Interest: on all amounts ordered from 19 February 2025 until paid in full, calculated per Schedule 2 of the Interest on Money Claims Act 2016.
- Filing fee reimbursement: $71.55 (payable by Ms Patel to Ms Kaur).
- Penalty: $4,000.00 payable by Ms Patel to Crown Bank Account (no portion to Ms Kaur).
- All payments due within 28 days of the determination date.
- Costs: Reserved.

The Chief Executive of Oranga Tamariki – Ministry for Children applied to remove an Authority proceeding (personal grievances brought by employee Dahlea Reisima) to the Employment Court, on the basis that the Court already had before it related proceedings between the same parties arising from an earlier Authority determination. The key legal questions were whether the grounds for removal under s 178(2)(c) and/or (d) of the Employment Relations Act 2000 were satisfied. The Authority granted removal, finding sufficient overlap in issues, evidence, and parties to justify the matter being determined by the Employment Court.

Applicant: The Chief Executive of Oranga Tamariki – Ministry for Children (employer)
Respondent: Dahlea Reisima (employee)

Applicant: Hamish Kynaston, Louise Robertson and Josephine Ripley, counsel for the applicant
Respondent: Allan Halse, advocate for the respondent

Dahlea Reisima was employed at a youth justice residence operated by Oranga Tamariki. An earlier Authority proceeding resulted in a 2024 determination (file 3203959) in which one unjustified disadvantage grievance was upheld and the rest dismissed. Ms Reisima challenged that determination to the Employment Court (a non-de novo challenge), and a directions conference was held in April 2026. Ms Reisima also lodged a new Authority application (file 3427904) raising a further chain of personal grievances, including matters relating to protected disclosures under the Protected Disclosures (Protection of Whistleblowers) Act 2022 and return-to-work plans, involving different Oranga Tamariki staff. Oranga Tamariki applied to remove the new Authority proceeding to the Employment Court, arguing there were same or similar or related issues between the two proceedings. Ms Reisima opposed removal, contending the two proceedings involved different events, different timeframes, and different staff, and that she would be disadvantaged by losing access to the Authority's informal and cost-effective process.

1. Whether removal to the Employment Court was warranted under s 178(2)(c) of the Act (Court already has before it proceedings between the same parties involving the same or similar or related issues) — Status: Established (paras [9], [15]-[18], [30]-[43]).

The test under s 178(2)(c) requires that the Court already have proceedings between the same parties involving the same, similar, or related issues; a holistic consideration of subject matter and factual connection is sufficient, and issues need not be identical (citing Randwick Meat Co Ltd v Burns [2015] NZEmpC 188 at [27]; Flight Attendants and Related Services (NZ) Association Inc v Air New Zealand [2013] NZEmpC 125 at [42]; Sheath v The Selwyn Foundation [2015] NZEmpC 226 at [11]). The Authority found that while the two proceedings concerned different chains of events, Ms Reisima's own statement of problem expressly tied the two chains together — describing a continuous pattern of conduct, shared managers, and overlapping subject matter including allegations of theft, abuse, bullying by the residence management team, return-to-work history, and retaliatory conduct. At least three witnesses likely to give evidence in the Court were also named in the current proceeding. The Authority concluded there were similar or related issues and a strong argument for evidentiary overlap, satisfying s 178(2)(c).

2. Whether removal to the Employment Court was warranted under s 178(2)(d) of the Act (in all the circumstances, the Court should determine the matter) — Status: Established (paras [10], [20], [39]-[43]).

Section 178(2)(d) gives the Authority a broader discretion to order removal if it is of the opinion that, in all the circumstances, the Court should determine the matter. The Authority found that the continuing themes in Ms Reisima's employer's conduct across both chains of grievances could more readily be considered by a single decision-making body examining the full period. It was more efficient use of judicial resources and less burdensome on parties and witnesses for one institution to conduct one hearing rather than two hearings in two different institutions. The Authority was satisfied there was a sound basis for removal under this ground as well.

3. Whether factors favouring retention in the Authority (informality, cost, loss of challenge right, mediation opportunity) outweighed the case for removal — Status: Dismissed (paras [37]-[38]).

Ms Reisima argued that removal would deprive her of the Authority's informal and cost-effective process, the right to challenge an Authority determination to the Court, and the opportunity for mediated settlement via an Authority direction (citing Dollar King v Jun [2020] NZEmpC 91). The Authority acknowledged these as factors to balance against removal but found them insufficient to justify retaining the matter: Ms Reisima was already committed to a Court process in the challenge proceedings, and the Court also has power to direct mediation under s 188(2) of the Act.

4. Whether removal was warranted under s 178(2)(a) or (b) of the Act — Status: Not reached (para [28]).

Ms Reisima referred to s 178(2)(a) and (b) grounds (important questions of law or matters of such nature and urgency as to be in the public interest) in the context of suggesting the Authority should be reluctant to remove matters not meeting those criteria. The Authority resolved the application on ss 178(2)(c) and (d) and did not need to separately analyse ss 178(2)(a) and (b).

5. Whether a non-publication order should be made — Status: Not reached (paras [5]-[6]).

Ms Reisima's representative raised the possibility of a non-publication order in the context of the Protected Disclosures (Protection of Whistleblowers) Act 2022. The Authority set a deadline for any such application, but no application was received, so the Authority proceeded without a non-publication order. The issue was not substantively determined.

6. Whether Ms Reisima had a potential retaliation grievance under s 103(1)(k) of the Act arising from Oranga Tamariki's removal application — Status: Not reached (para [5]).

Ms Reisima's representative raised the possibility of a retaliation grievance in connection with the removal application. The Authority noted this was not before it in the current proceeding and no amended statement of problem had been lodged in file 3427904 to that effect.

The application for removal was upheld in full; the proceedings in file 3427904 are to be removed to the Employment Court.

None ordered (this was a procedural removal application; the substantive personal grievances in file 3427904 have not been investigated and remain to be determined by the Employment Court).

A Labour Inspector brought proceedings in the Employment Relations Authority against Bottle Box Holdings Limited (BBH) and its sole director Manpreet Singh, alleging failures to supply and maintain wages, time, holiday, and leave records for seven employees, in breach of the Employment Relations Act 2000 and the Holidays Act 2003. The central question was whether the Authority's proceedings should be removed to the Employment Court, where related proceedings between the same parties were already on foot. The Authority granted the removal application, ordering the matter transferred to the Employment Court.

Applicant: A Labour Inspector of the Ministry of Business, Innovation and Employment
Respondent: Bottle Box Holdings Limited (First Respondent, employer); Manpreet Singh (Second Respondent, sole director of BBH)

Applicant: Michelle Brown, counsel for the Applicant
Respondent: Manpreet Singh for the Respondents

BBH operated as an employer during the period September 2023 to April 2025, during which time it allegedly failed to supply and maintain wages, time, holiday, and leave records for seven employees. On 22 December 2025, the Labour Inspector lodged an application in the Authority alleging breaches of ss 229, 232, and 130 of the Employment Relations Act 2000, and s 75 of the Holidays Act 2003, and sought penalties against both BBH and Mr Singh personally. Concurrently, the Labour Inspector had filed separate proceedings in the Employment Court under Part 9A of the Act, seeking declarations of breach, pecuniary penalties for serious breaches of minimum entitlement provisions, compensation orders, and banning orders in relation to the same employees and the same alleged employment practices. Despite being given multiple opportunities — including leave to file statements of reply in the Authority and statements of defence in the Court — neither BBH nor Mr Singh filed any documents or submissions. The Labour Inspector applied for the Authority's proceedings to be removed to the Employment Court on the grounds that the same parties and issues were already before the Court, and that parallel proceedings would result in duplication of evidence and factual findings.

1. Whether the Authority's proceedings should be removed to the Employment Court under s 178(2) of the Employment Relations Act 2000 — Status: Established (paras [14]-[24]).

The Authority's power to remove proceedings to the Employment Court arises under s 178(2) of the Act. The Labour Inspector submitted two grounds: (a) the Court already had proceedings on foot between the same parties involving the same or similar or related issues; and (b) in all the circumstances the matter should be determined by the Court, per s 178(2)(d). The Authority found that the Employment Court proceedings concerned the same group of employees, the same period of alleged conduct (September 2023 to April 2025), and the same alleged breaches of the Minimum Wage Act 1983, Wages Protection Act 1983, and Holidays Act 2003. The Authority was satisfied both grounds were made out: the Court would need to make findings on hours worked, payments made, and records kept by BBH in any event, and duplication of evidence and factual findings would result if both forums proceeded in parallel. Accordingly, the Authority exercised its discretion and ordered removal.

2. Whether penalties should be imposed on BBH under ss 229(3), 232(4), and 130(4) of the Employment Relations Act 2000 and s 75 of the Holidays Act 2003 for alleged record-keeping failures — Status: Not reached (paras [1]-[5], [24]).

The Labour Inspector sought penalties against BBH for failing to supply wages and time records and holiday and leave records, and for failing to maintain compliant records. Because the Authority ordered removal of the matter to the Employment Court, it did not determine the merits of the penalty claims, which will be resolved in the Court proceedings.

3. Whether penalties should be imposed on Manpreet Singh personally under ss 130(4) and 142(x) of the Act and s 75 of the Holidays Act 2003 as a person involved in BBH's alleged breaches — Status: Not reached (paras [4], [24]).

The Labour Inspector alleged Mr Singh, as sole director of BBH, was personally involved in the record-keeping breaches and sought penalties against him individually. As with the penalty claims against BBH, this issue was not determined by the Authority and will be dealt with in the Employment Court proceedings following removal.

4. Costs — Status: Reserved (para [25]).

The Authority reserved costs without providing reasons, leaving the matter to be addressed at a later stage.

The removal application was upheld; the Authority's proceedings (matter 3433564) were ordered removed to the Employment Court. The merits of the penalty claims against BBH and Mr Singh were not determined.

None ordered at this stage. The matter has been removed to the Employment Court for substantive determination. Costs are reserved.

A Labour Inspector brought enforcement proceedings against The Indian Taste Limited (a restaurant business) and its former sole director and shareholder Krishna Khandelwal for serious and systemic breaches of multiple employment standards affecting seven migrant worker employees. The key legal questions were whether the breaches were established, whether Mr Khandelwal was personally liable as a "person involved" in those breaches, and what penalties should be imposed. The Authority found all breaches established, held Mr Khandelwal personally liable on a contingent basis, and imposed total arrears orders of $199,529.15 plus interest, and penalties of $177,300.00 against Mr Khandelwal.

Applicant: A Labour Inspector (Labour Inspectorate, Ministry of Business, Innovation and Employment)
Respondent: The Indian Taste Limited (First Respondent, employer/restaurant business) and Krishna Khandelwal (Second Respondent, sole director and shareholder)

Applicant: Greg La Hood, counsel for the Applicant
Respondent: No appearance for the First Respondent; No appearance for the Second Respondent

The Indian Taste Limited operated a restaurant business in Auckland, with Krishna Khandelwal as its sole director and shareholder during the relevant period. Between March and December 2024 the Labour Inspectorate received multiple complaints from employees alleging serious minimum employment standards breaches, prompting an investigation commencing in March 2024 and resulting in an Investigation Report dated 9 January 2025. The business was sold to a third party (Mehakjeet Singh) on 17 April 2024, though Mr Singh indicated he was in the process of returning the business to Mr Khandelwal. Seven migrant employees were affected; they reported working 60–90 hours per week while being paid for only 30–33 hours, being required to pay significant sums as purported immigration or job-security fees, and experiencing coercive and intimidating conduct by Mr Khandelwal, including visa-related threats. Mr Khandelwal denied liability throughout, filed a statement in reply contesting the Investigation Report, appeared at the Authority's premises on the first morning of the five-day Investigation Meeting but then emailed to say he was unwell and would not attend; he failed to provide sworn evidence and the Authority proceeded by formal proof. The Labour Inspector sought arrears totalling $199,529.15 across seven employees, interest thereon, and penalties against Mr Khandelwal personally.

1. Whether the Authority should proceed by formal proof in the absence of the respondents — Status: Established (paras [12]-[21]).

The Authority was satisfied that Mr Khandelwal had sufficient opportunity to participate in the Investigation Meeting. He appeared at the Authority's premises on the morning of 16 March 2026 but sent an email approximately 25 minutes before the meeting was due to commence claiming illness and declining to attend. The Authority warned him the meeting might proceed in his absence. The First and Second Respondents failed to lodge submissions when given the opportunity. The Authority proceeded by formal proof under s 174E of the ER Act, treating unsworn witness statements from Mr Khandelwal, Amit Sharma, and Sharad Khandelwal as carrying no weight.

2. Whether The Indian Taste Limited breached s 6 of the Minimum Wage Act 1983 by failing to pay the adult minimum wage — Status: Established (paras [29]-[30]).

The applicable minimum wage was $22.70 per hour. Evidence from the Labour Inspector, including employee rosters and records, demonstrated that employees were not paid the minimum wage for all hours worked. Total minimum wage arrears were calculated at $82,522.83 across four affected complainants.

3. Whether The Indian Taste Limited breached s 4 of the Wages Protection Act 1983 by making unlawful deductions (underpayment of contractual entitlements) — Status: Established (paras [31]-[33]).

The Labour Inspector calculated the difference between amounts paid and the contractual hourly rate of $29.66, characterising the shortfall as unlawful deductions from wages due under the employment agreements. The Court of Appeal in Spotless Services (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2008] NZCA 580 confirmed that unpaid wages owed under an employment agreement are recoverable as unlawful deductions under ss 4 and 11 of the WPA. Total deduction arrears were $26,588.97.

4. Whether The Indian Taste Limited breached s 130 of the Employment Relations Act 2000 by failing to keep accurate wage and time records — Status: Established (paras [34]-[36]).

Section 130 of the ER Act requires every employer to keep a written wage and time record showing hours worked each day and pay for those hours; s 4B imposes a general record-keeping obligation to demonstrate compliance with minimum entitlements. The Authority found that rosters provided by The Indian Taste were unreliable and inconsistent with other evidence of hours actually worked, and that wages and time records were inaccurate or incomplete.

5. Whether The Indian Taste Limited breached s 81 of the Holidays Act 2003 by failing to keep accurate holiday and leave records — Status: Established (para [7](c)).

The Authority accepted the Labour Inspector's finding that The Indian Taste failed to maintain accurate records of public holidays, alternative holidays, and final holiday pay amounts as required by s 81 of the HA. This was confirmed as part of the record-keeping breach group addressed in the penalty analysis.

6. Whether The Indian Taste Limited breached ss 50, 56 and 60 of the Holidays Act 2003 by failing to pay employees correctly for working on public holidays — Status: Established (paras [37]-[38]).

Employees who worked on public holidays were not paid time-and-a-half and did not receive alternative holiday entitlements when the worked public holiday was an otherwise working day, in breach of the statutory obligations under the HA. Total public holiday arrears claimed were $11,960.37 (worked public holidays) and $7,923.56 (alternative holidays).

7. Whether The Indian Taste Limited breached ss 23 and 27 of the Holidays Act 2003 by failing to pay correct final holiday pay in a timely manner — Status: Established (para [7](g), paras [38]-[39]).

Final holiday pay was incorrectly calculated and paid late, in breach of ss 23 and 27 of the HA. Total final holiday pay arrears were $10,287.79.

8. Whether The Indian Taste Limited breached s 12A of the Wages Protection Act 1983 by charging unlawful premiums — Status: Established (paras [40]-[42]).

Employers are prohibited from seeking or receiving a premium in respect of employment. Mr Khandelwal required employees to pay what he described as non-refundable immigration fees and job security money, directing payments to various bank accounts. The Labour Inspector assessed the individual circumstances of each payment and calculated total unlawful premiums of $60,245.63.

9. Whether The Indian Taste Limited breached s 65 of the Employment Relations Act 2000 by failing to include an accurate description of work in an individual employment agreement — Status: Established (para [7](a)).

Pritam Halder's employment agreement described him as a kitchen hand when he was in fact a kitchen manager; the job description did not reflect the reality of his work. This was accepted as a breach of s 65 of the ER Act.

10. Whether Krishna Khandelwal was a "person involved" in the breaches of employment standards under s 142W of the Employment Relations Act 2000 — Status: Established (paras [50]-[53]).

Section 142W provides that a person is involved in a breach of employment standards if they were in any way, directly or indirectly, knowingly concerned in or party to the breach; where the breach is by a company, a director may be treated as a person involved. Mr Khandelwal was the sole director and shareholder of The Indian Taste during the relevant period, was involved in recruitment, operations, general business activities, and was primarily responsible for finance and administration. The Authority found he was a person involved in all the established breaches.

11. Whether Mr Khandelwal should be made personally liable for arrears under s 142Y and related provisions (s 11AA MWA; s 77A HA) — Status: Established (conditionally) (paras [54], [96](ii)).

Under s 142Y of the ER Act, a person involved in a breach may be made liable for outstanding arrears if the employer company is unable to pay. The Authority found that liability could attach to Mr Khandelwal in the event The Indian Taste is unable to satisfy the arrears orders, and granted leave for the Inspector to seek personal recovery from him on that contingency. The primary arrears orders were made against The Indian Taste Limited.

12. Whether penalties should be imposed on Mr Khandelwal under s 142X of the Employment Relations Act 2000, and if so, the quantum — Status: Established (paras [55]-[95]).

No penalties were sought against The Indian Taste because all identified breaches occurred exclusively under Mr Khandelwal's direction. The Authority applied the four-step penalty framework from Borsboom (Labour Inspector) v Preet PVT Ltd [2018] NZEmpC 110, together with the mandatory considerations in s 133A of the ER Act, and the additional considerations identified in that case. Step 1 identified 27 penalisable breach instances across five categories with a total maximum of $270,000. Step 2 applied severity percentages (80%–90% for most categories) to yield $197,000. Steps 3 and 4 yielded no discounts (no financial information provided; denial of responsibility throughout). For Step 5 proportionality, the Labour Inspector proposed a 15% reduction; however, the Authority reduced this to 10% given the quantum of unlawfully withheld wages and the deplorable nature of Mr Khandelwal's conduct. The resulting penalty is $177,300.00. References were also made to A Labour Inspector v Prabh Ltd [2018] NZEmpC 110, A Labour Inspector v Daleson Investment Ltd [2019] NZEmpC 12, A Labour Inspector & Ors v Pegasus Energy Limited and Anor [2018] NZERA 26, A Labour Inspector v Happytime BBQ Restaurant Limited and Anor [2023] NZERA 20, A Labour Inspector v 2 Cheap Cars Limited [2017] NZERA 270, and Rural Practice Ltd v Labour Inspector [2025] NZEmpC 198.

13. Whether penalties should be imposed on The Indian Taste Limited — Status: Dismissed (paras [10], [55]).

The Labour Inspector did not seek penalties against The Indian Taste on the basis that all identified breaches occurred exclusively under Mr Khandelwal's direction. No penalties were therefore ordered against the First Respondent.

14. Whether interest should be ordered on arrears — Status: Established (para [96](iii)).

Interest was ordered on the total arrears of $199,529.15 from 3 March 2025 (the date the Inspector's statement of problem was lodged) until payment in full, pursuant to Schedule 2, clause 11 of the ER Act, to be calculated using the civil debt interest calculator at www.justice.govt.nz.

15. Costs — Status: Reserved (paras [97]-[99]).

Costs were reserved, with the parties encouraged to resolve costs between themselves. If unresolved, the Labour Inspector may lodge a memorandum on costs within 28 days of the determination; respondents then have 14 days to reply. The Authority indicated costs would ordinarily be assessed on its usual notional daily rate.

The claims were upheld: all employment standards breaches were established, Mr Khandelwal was found to be a person involved in the breaches, arrears orders totalling $199,529.15 plus interest were made against The Indian Taste Limited (with contingent personal liability for Mr Khandelwal), and penalties of $177,300.00 were imposed on Mr Khandelwal personally.

Arrears (ordered against The Indian Taste Limited within 20 days):
- Ajay Kumar: $29,598.69 (gross wage arrears) + $15,819.76 (premium reimbursement) = $45,418.45
- Ajay Bhandari: $38,904.14 (gross wage arrears) + $11,365.87 (premium reimbursement) = $50,270.01
- Pushpinder Kumar: $33,052.84 (gross wage arrears) + $6,885.00 (premium reimbursement) = $39,937.84
- Pritam Halder: $37,727.85 (gross, all categories)
- Anil Gairola: $14,400.00 (premium reimbursement)
- Deepak Singh: $4,200.00 (premium reimbursement)
- Arvind Bartwal: $7,575.00 (premium reimbursement)
- Total arrears: $199,529.15

Contingent personal liability: Leave granted for the Inspector to seek recovery from Mr Khandelwal personally under s 142Y of the ER Act if The Indian Taste is unable to pay.

Interest: On $199,529.15 from 3 March 2025 until arrears paid in full (pursuant to Schedule 2, cl 11 of the ER Act).

Penalties (against Mr Khandelwal, within 20 days): $177,300.00 total
- $142,300.00 to the Crown via MBIE
- $35,000.00 to be divided equally among the seven complainants ($5,000 each)

Costs: Reserved.

Dr Rachelle Williamson, a consultant specialist anaesthetist employed by Health New Zealand Te Whatu Ora (HNZ) since 2004, was dismissed on 3 March 2026 following a lengthy investigation into her unauthorised access of patient records. She applied for interim reinstatement pending resolution of her personal grievance claims of unjustified disadvantage and unjustified dismissal. The Authority found she had a seriously arguable case of unjustified dismissal but only a weakly arguable case for permanent reinstatement due to the effect of recent statutory amendments (ss 123B and 123C of the Employment Relations Act 2000), and declined interim reinstatement on the overall justice assessment.

Applicant: Rachelle Jenny Williamson (employee — consultant specialist anaesthetist)
Respondent: Health New Zealand Te Whatu Ora (employer)

Applicant: Anthony Drake and Jared Higby, counsel for the Applicant
Respondent: Shaun Brookes and Michael Henderson-Rauter, counsel for the Respondent

Dr Williamson had been employed by HNZ and its predecessors since 2004 and appointed as a consultant specialist anaesthetist in December 2011. In October 2024, HNZ received a complaint alleging she had accessed patient records without clinical justification — including records of a person connected to her father's estate litigation, her brother's records, her own records, and approximately 52 other patient files — and had used that access to visit a patient in hospital. HNZ conducted an investigation from November 2024 through to March 2026, during which Dr Williamson acknowledged much of the conduct, attributed it to extreme personal stress from family litigation, and apologised. HNZ's final decision to dismiss Dr Williamson on notice was issued on 3 March 2026, to take effect 3 June 2026. Dr Williamson went on medical leave after receiving the first letter from HNZ and was not at work during her notice period; she had sought to agree a return-to-work plan but HNZ did not engage with that. The parties attended mediation without resolution, and Dr Williamson applied for interim reinstatement pending a substantive hearing of her personal grievances.

1. Whether the Authority should grant urgency to the interim reinstatement application — Status: Established (paras [8]).

The Authority applied its standard approach to urgency for interim reinstatement applications and found no sufficient reason to depart from it. Urgency was assigned notwithstanding HNZ's opposition, consistent with standard practice in such matters.

2. Whether the law applicable to remedies (including the recent amendments via ss 123B and 123C) is determined by the date of dismissal or the date of the underlying conduct — Status: Established (paras [52]-[54]).

Dr Williamson argued that because her conduct and HNZ's investigation predated the amendments (in force from 21 February 2026), the amended provisions should not apply. The Authority applied the principles in Ramkissoon v Commissioner of Police [2018] NZCA 304 and Allen v C3 Ltd [2012] NZEmpC 124, concluding that the personal grievance and the right to claim reinstatement arose at the time of dismissal (3 March 2026), which was after the amendments came into force. Accordingly, ss 123B and 123C must be considered.

3. Whether Dr Williamson has a seriously arguable case that her dismissal was unjustified — Status: Established (paras [43]-[51]).

The test requires assessing whether HNZ's actions were what a fair and reasonable employer could have done in all the circumstances (s 103A of the Employment Relations Act 2000). The Authority found it arguable that Dr Williamson's conduct was less serious than in Shaw v Bay of Plenty District Health Board [2022] NZEmpC 10, noting her acknowledgement, her personal circumstances, and her lengthy record. It found serious arguability in several procedural defects: HNZ's significant delays in completing the process, failure to provide a transcript of the investigation meeting, arguably inadequate responses to information requests about comparable cases (with disparity of treatment being a recognised grievance basis), arguably insufficient basis for Mr Hood's conclusions about lack of contrition and irrecoverable trust and confidence, possible reliance on undisclosed material, and characterisation of Dr Williamson's conduct as "use of private information for personal gain" — a more serious concern that had apparently never been put to her. The Authority concluded Dr Williamson has a seriously arguable case of unjustified dismissal.

4. Whether Dr Williamson has a seriously arguable case for permanent reinstatement, having regard to ss 123C and 125 of the Employment Relations Act 2000 — Status: Dismissed (weakly arguable only) (paras [55]-[65]).

Section 125 requires reinstatement wherever practicable and reasonable as the primary remedy; however, s 123C (in force from 21 February 2026) bars reinstatement where the employee's actions contributed to the situation giving rise to the grievance. The Authority interpreted "contributed" consistently with its meaning in s 124, following Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, as requiring culpable or blameworthy conduct creating the situation. It found HNZ had a strongly arguable case that Dr Williamson contributed to the situation (she had admitted inappropriate access in breach of applicable standards), noting HNZ appeared in a stronger position than the employer in McMillan and ANOR v Qube Ports NZ Limited [2026] NZERA 262. Dr Williamson had only a weakly arguable case that s 123C would not bar reinstatement. The practicability and reasonableness of reinstatement under s 125 (following Smith v Fletcher Concrete & Infrastructure Ltd [2020] NZEmpC 125) was noted as strongly arguable in Dr Williamson's favour, but this was outweighed by the s 123C analysis.

5. Whether the balance of convenience favours interim reinstatement — Status: Partially established (paras [66]-[71]).

The Authority considered both the prejudice to Dr Williamson (risk to clinical currency and professional reputation from ongoing exclusion from public health practice, which might not be adequately remedied by compensation) and the risks to HNZ (public confidence, safeguarding of patient information, departmental cohesion). It distinguished Chand v Te Whatu Ora – Health New Zealand [2024] NZERA 58 on the facts, finding that Dr Williamson's privacy breaches were unlikely to deter patients in the way racist conduct might. HNZ's concern about fitness to return to work could be addressed by a medical clearance condition. Overall, the balance of convenience favoured Dr Williamson, but not strongly.

6. Whether, in the overall interests of justice, interim reinstatement should be granted — Status: Dismissed (paras [72]-[74]).

Standing back, the Authority weighed the seriously arguable unjustified dismissal claim (favouring Dr Williamson) against the weakly arguable case for permanent reinstatement (favouring HNZ) and the balance of convenience (moderately favouring Dr Williamson). The most significant factor was HNZ's strongly arguable case that the amended statutory provisions (s 123C) would prevent reinstatement as against Dr Williamson's weakly arguable case that they would not. The overall interests of justice did not support granting interim reinstatement.

7. HNZ's jurisdictional argument that ss 123B and 123C bar the Authority from awarding any remedies — Status: Not reached as a discrete jurisdictional determination (paras [4], [55]-[56], [60]-[61]).

HNZ raised ss 123B and 123C as a jurisdictional bar to remedies. The Authority addressed these provisions only in the context of assessing the arguable case for permanent reinstatement at the interim stage, rather than resolving the jurisdictional question finally. The matter is reserved for the substantive investigation meeting.

8. Costs — Status: Reserved (para [76]).

The Authority reserved costs without further comment, to be addressed at a later stage.

The application for interim reinstatement was dismissed; a substantive investigation meeting will be timetabled to determine the personal grievance claims and the jurisdictional issues.

None ordered at this stage. This is a preliminary determination on interim reinstatement only. Costs are reserved. The substantive hearing — including the personal grievance claims of unjustified disadvantage and unjustified dismissal, and the jurisdictional issues under ss 123B and 123C — remains to be determined.