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Applicant: Elsie Middleton (employee)
Respondent: Accident Compensation Corporation (employer)

Applicant: Jenny Beck and James Sawers, counsel for the Applicant
Respondent: David Traylor, counsel for the Respondent

Elsie Middleton has been employed by ACC in Dunedin since July 2013, most recently as a senior workflow and triage co-ordinator (STWC). Three personal grievances of unjustified disadvantage were raised: (1) that ACC's process for selecting candidates for a vacant workforce planner role in June 2022 was flawed and unfair; (2) that Ms Middleton's 2021/2022 performance rating of "successfully achieved" was improperly assessed; and (3) that ACC deliberately withheld information about the potential disestablishment of her STWC technical role in early 2023, inducing her to apply for a different internal role without sufficient information. ACC denied all three grievances, contending its recruitment process was fair and transparent, its performance assessment was objective and appropriate given Ms Middleton's short tenure, and that no formal disestablishment proposal was ever made or deliberately concealed. The matter proceeded through two mediations (November 2022 and mid-2024), an internal CEO-directed review, and a protracted investigation meeting process spanning July and December 2025, with final submissions received in March 2026.

1. Whether ACC unjustifiably disadvantaged Ms Middleton in the assessment and selection process for the workforce planner role (first personal grievance) — status: (Dismissed)
2. Whether ACC unjustifiably disadvantaged Ms Middleton by the 2021/2022 performance rating given in her STWC technical triage role (first personal grievance, second limb) — status: (Dismissed)
3. Whether ACC unjustifiably disadvantaged Ms Middleton by inducing her to change roles without providing sufficient and relevant information about the potential disestablishment of her technical triage role (second/third personal grievance) — status: (Dismissed)
4. Whether ACC breached its good faith obligations under s 4(1A)(b) of the Employment Relations Act 2000 in respect of any of the above conduct — status: (Dismissed)
5. Whether any remedies awarded should be reduced under s 124 of the Act for Ms Middleton's contributory conduct — status: (Not reached)
6. Costs — status: (Reserved/Conditional)

1. The applicable test is whether ACC adopted a fair and reasonable selection process, as the Authority and courts will not normally interfere in internal selection decisions unless there is evidence of a flawed or biased process or discriminatory practices (citing NZ Building Trades Union v Hawkes Bay Area Health Board [1992] 2 ERNZ 897). The Authority found that all candidates were asked identical questions, the interview process focused on behavioural competence, and no numerical scoring system was required under ACC's own policy. The Authority was not persuaded that insufficient pre-application coaching amounted to a disadvantage grievance, particularly given Ms Middleton had only been in her current role for eight months and management had encouraged her to develop in that role first. The claim that a successful candidate's internal reference check may not have been completed was found to be irrelevant to the assessment of Ms Middleton's own suitability. The grievance was dismissed.
2. The Authority noted that interference in an employer's performance assessment is usually inappropriate unless there is evidence of unfairness in the application of known criteria, citing Fletcher v Chief Executive, Statistics New Zealand (CA 153/06) as authority that the Authority cannot simply step into the employer's shoes and substitute its own assessment. The evidence showed that Ms Middleton had been in the assessed role for only eight months, which was found to be an objectively reasonable basis for rating her at "successfully achieved" rather than higher. The Authority found that ACC management clearly communicated the reasoning behind the rating and the moderation process was appropriately conducted. The grievance was dismissed.
3. The Authority identified that this claim had more conceptual scope for intervention than the first two, as it concerned information provision and potential good faith obligations. However, the Authority found that even accepting some communication deficiencies occurred (including non-provision of data Ms Middleton had requested), the evidence did not establish that ACC deliberately withheld information with the intent to force Ms Middleton into a new role. ACC managers gave credible evidence that raising the possibility of a clinical triage vacancy in March 2023 was motivated by genuine concern for Ms Middleton's options, not bad faith. Critically, no formal disestablishment proposal was ever made, the technical role was not disestablished, and Ms Middleton moved to a comparable role with the same remuneration range, meaning no material disadvantage was established. The grievance was dismissed.
4. The Authority acknowledged the obligation under s 4(1A)(b) of the Act requiring parties to be active, constructive, responsive, and communicative in maintaining a productive employment relationship (citing Spotless Facility Services NZ Ltd v Mackay (No 2) [2017] ERNZ 44). The Authority also noted the broad concept of "conditions of employment" for disadvantage grievance purposes, citing TranzRail Ltd v Rail and Maritime Transport Union (Inc) [1999] 1 ERNZ 460 (CA). However, having found no unjustified disadvantage was established across all three grievances, and having found ACC's conduct was inadvertent rather than deliberately misleading, the Authority concluded no good faith breach was established. The claim was dismissed.
5. Because no personal grievance or breach of good faith was established on any of the three claims, the question of whether any remedy should be reduced under s 124 of the Act for Ms Middleton's contributory conduct did not arise and was not addressed.
6. Costs were reserved. The parties were encouraged to resolve costs between themselves, and the Authority suggested they consider letting costs lie where they fall given the overall circumstances. If unresolved, ACC may lodge a costs memorandum within 28 days of the determination, with Ms Middleton having 14 days to reply. Any determination on costs would apply the Authority's usual daily tariff basis unless circumstances warrant adjustment.

All three personal grievances and the good faith breach claim were dismissed in full.

None ordered. The Authority recommended (under s 123(1)(ca) of the Act) that the parties engage in further mediation to constructively address how the ongoing employment relationship will continue in light of the findings. Costs are reserved, with a process set out for resolution if the parties cannot agree.

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Applicant: Peter Saunders (employee)
Respondent: Service Foods Limited (employer)

Applicant: Self-represented (formerly represented by an advocate who withdrew twice during proceedings)
Respondent: Kirsty McDonald and Bridget Craig, counsel for the Respondent

Peter Saunders was employed by Service Foods Limited and brought a series of claims arising principally from an alleged assault by a co-worker in December 2022. In a preliminary determination dated 31 March 2025 ([2025] NZERA 184), the Authority found that Mr Saunders had not raised any personal grievances within the statutory 90-day timeframe; Mr Saunders did not challenge that finding. The present determination addresses the remaining claims — framed variously under the Crimes Act 1961, the Health and Safety at Work Act 2015 (HSWA), and in tort — which were referred to an on-the-papers investigation into jurisdiction. Mr Saunders' advocate withdrew representation twice during the proceedings due to inability to contact his client, and Mr Saunders ultimately failed to lodge any affidavit evidence or submissions in the jurisdictional investigation despite being given ample opportunity and clear notice that proceedings would continue regardless. Service Foods lodged submissions in accordance with the timetable; those submissions argued that the Authority lacked jurisdiction over all remaining claims. The Authority proceeded on the basis that Mr Saunders had been given a reasonable opportunity to participate but had failed to engage.

1. Whether the Authority has jurisdiction to investigate Mr Saunders' claim that he was assaulted by a co-worker — (Dismissed)
2. Whether the Authority has jurisdiction to investigate whether Service Foods engaged in adverse conduct under the HSWA (ss 88–90) — (Dismissed)
3. Whether the Authority has jurisdiction to investigate whether Service Foods breached its duty to notify WorkSafe under s 56 of the HSWA — (Dismissed)
4. Whether the Authority has jurisdiction to investigate Mr Saunders' tort claim of battery against Service Foods — (Dismissed)
5. Whether the Authority has jurisdiction to investigate Mr Saunders' tort claim of intentional infliction of emotional harm against Service Foods — (Dismissed)
6. Whether either party is entitled to an award of costs — (Conditional/Reserved)

1. **Assault claim — jurisdiction**
2. The Authority noted it has no criminal jurisdiction and cannot make orders under the Crimes Act 1961. While the Authority can find that an assault occurred in the context of investigating a personal grievance (citing *John Wright v Otira Stagecoach Hotel Limited* [2024] NZERA 29), the preliminary determination had already found that no personal grievance relating to the alleged assault had been raised within the 90-day timeframe under s 114 of the Employment Relations Act 2000 (the Act). Because the assault claim could only be investigated substantively as part of a personal grievance, and that grievance was out of time, no jurisdictional basis remained. Mr Saunders' non-participation meant the Authority could take the matter no further, and no finding was made on the merits of the assault allegation.
3. **HSWA adverse conduct claim — jurisdiction**
4. The Authority analysed ss 88–90 of the HSWA, finding that s 88 is a definition provision establishing the conduct element, s 89 establishes the role element, and s 90 creates the liability (on conviction) for a fine. The Authority held that it has no jurisdiction to investigate or determine a claim under these provisions, as enforcement of the HSWA's adverse conduct regime involves criminal/regulatory liability that falls entirely outside the Authority's statutory jurisdiction under the Employment Relations Act 2000. The claim was dismissed for want of jurisdiction.
5. **HSWA duty to notify WorkSafe — jurisdiction**
6. Section 56 of the HSWA requires entities to notify WorkSafe of notifiable events as soon as practicable, with s 56(6) providing for fines up to $50,000 for breach. The Authority held that it has no jurisdiction to investigate or determine a claim under this provision. The penalty regime under the HSWA is a criminal/regulatory matter outside the Authority's remit. The claim was dismissed for want of jurisdiction.
7. **Tort of battery — jurisdiction**
8. The Authority applied s 161(1)(r) of the Act and the Supreme Court's majority judgment in *FMV v TZB* [2021] NZSC 102. Section 161(1)(r) gives the Authority exclusive jurisdiction over actions arising from or related to the employment relationship, but expressly excludes actions founded in tort. The Supreme Court in *FMV* held that an employment relationship problem that can be framed as any of the examples in s 161(1)(a)–(qd) must be framed that way and cannot be brought as a tort; only where the problem cannot be framed in any way except as a tort does the s 161(1)(r) exception apply. The Authority accepted Service Foods' submission that Mr Saunders' battery claim had already been raised and determined as an unjustified disadvantage personal grievance (found out of time), and the tort exception cannot be used to circumvent the 90-day limitation in s 114. The claim was dismissed for want of jurisdiction.
9. **Tort of intentional infliction of emotional harm — jurisdiction**
10. Applying the same analysis from *FMV v TZB* and s 161(1)(r) of the Act, the Authority found that the intentional infliction of emotional harm claim also arose out of the alleged assault and could have been (and was) brought as a personal grievance for unjustified disadvantage. Because a claim capable of being framed as a personal grievance must be brought that way, the tort exception in s 161(1)(r) did not apply. The s 114 90-day limitation cannot be circumvented by reframing the claim in tort. The claim was dismissed for want of jurisdiction.
11. **Costs**
12. The Authority reserved costs and encouraged the parties to resolve the issue between themselves. If unresolved, Service Foods may lodge a memorandum on costs within 28 days of the determination, with Mr Saunders having 14 days from service to reply. The Authority indicated it would apply the standard daily tariff basis unless circumstances warranted adjustment.

All of Mr Saunders' remaining claims were dismissed for want of jurisdiction, with costs reserved pending further submissions if the parties cannot agree.

None ordered. Costs reserved — Service Foods may file a costs memorandum within 28 days of the determination if the parties cannot agree; Mr Saunders then has 14 days to respond. The Authority will determine costs on the standard daily tariff basis if asked to do so.

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Applicant: Zheng Wang (employee)
Respondent: Jasmine Catering Limited (employer)

Applicant: David Kim, advocate for the Applicant
Respondent: Martin Lyttleton, advocate for the Respondent

Mr Zheng Wang was employed by Jasmine Catering Limited from 7 September 2015 to 16 January 2017. In earlier proceedings, the Authority issued three prior determinations in 2023: a substantive determination awarding Mr Wang $3,142.20 gross in wage arrears (Wang v Jasmine Catering Limited [2023] NZERA 263), a counterclaim determination (Jasmine Catering Ltd v Wang [2023] NZERA 264), and a costs determination awarding Mr Wang $6,321.56 towards his legal costs (Wang v Jasmine Catering Ltd [2023] NZERA 333). Jasmine Catering did not pay any of those awarded amounts and no payment arrangement was agreed between the parties. Mr Wang then applied to the Authority for a compliance order requiring Jasmine Catering to comply with the prior determinations. At the investigation meeting on 26 May 2026, Jasmine Catering's advocate acknowledged non-payment but submitted that the company owed outstanding taxes to Inland Revenue and faced likely liquidation, while still remaining registered on the Companies Register.

1. Has Mr Wang been paid any of the money awarded to him in the Authority's prior determinations? (Established — he had not been paid)
2. Should a compliance order be issued requiring Jasmine Catering to comply with the substantive and costs determinations? (Established)
3. Should interest be awarded on the outstanding amounts, and if so, from what date and on what basis? (Established)
4. What costs and disbursements should be awarded in connection with this compliance order application? (Established)
5. What are the consequences of future non-compliance with the compliance order? (Procedural — addressed by way of statutory warning)

1. The parties did not dispute that no payments had been made to Mr Wang and that no payment arrangement had been agreed. Jasmine Catering's sole director, Ms Jessie Bo, did not challenge this. The Authority therefore found as a matter of agreed fact that Jasmine Catering had failed to comply with both the substantive determination (Wang v Jasmine Catering Ltd [2023] NZERA 263) and the costs determination (Wang v Jasmine Catering Ltd [2023] NZERA 333).
2. The Authority considered Jasmine Catering's submission that it owed taxes to Inland Revenue and would likely be liquidated. However, the company remained registered on the Companies Register and the Employment Court challenge process had concluded, meaning Mr Wang was entitled to be paid. The Authority found there was no prospect of Mr Wang being paid unless a compliance order was issued and accordingly granted the compliance order application under the relevant provisions of the Employment Relations Act 2000.
3. The Authority held that, because Jasmine Catering had effectively had the use of Mr Wang's money since 2023 without paying it, it was appropriate to award interest to compensate him for being deprived of the use of his own funds. Interest of $1,503.80 was calculated using the Civil Debt Interest Calculator on the Ministry of Justice website, running from 23 June 2023 (the date of the costs determination) to 26 May 2026 (the date of this determination), on the total outstanding principal of $9,463.76 (being $3,142.20 wage arrears plus $6,321.56 costs). The Authority also awarded forward-running interest from 27 May 2026 on the total sum of $11,789.12 until paid in full, and interest on any unpaid costs from 24 June 2026 (the 29th day after this determination).
4. As the successful party, Mr Wang was entitled to a contribution towards his actual legal costs for the compliance order application, which the Authority was told exceeded the notional daily tariff. The Authority ordered Jasmine Catering to pay $750.00 towards Mr Wang's legal costs plus $71.56 to reimburse his filing fee, totalling $821.56, within 28 days of the determination.
5. The Authority noted that if Jasmine Catering failed to comply with the compliance order, Mr Wang could apply under s 138(6) of the Employment Relations Act 2000 to the Employment Court to exercise its powers under s 140(6), which include imprisonment for up to three months, a fine of up to $40,000, or sequestration of property. The Authority clarified that any such enforcement must be pursued in the Employment Court, not the Authority itself.

The compliance order application was upheld in full, with Jasmine Catering ordered to pay Mr Wang the outstanding wage arrears, prior costs award, interest on those sums, and costs for the compliance order application.

- Wage arrears (compliance with [2023] NZERA 263, para [111]): $3,142.20 gross
- Legal costs from prior proceedings (compliance with [2023] NZERA 333, para [38]): $6,321.56
- Interest on outstanding principal of $9,463.76 for the period 23 June 2023 to 26 May 2026: $1,503.80
- Costs and disbursements for this compliance order application: $821.56 ($750.00 costs contribution + $71.56 filing fee reimbursement)
- **Total payable within 28 days: $11,789.12 gross**
- Forward-running interest from 27 May 2026 on $11,789.12 until paid in full (calculated using the Civil Debt Interest Calculator, Ministry of Justice website)
- Interest on the $821.56 costs award running from 24 June 2026 (29th day after determination) until paid in full
- Warning issued that non-compliance may result in Employment Court enforcement including imprisonment (up to 3 months), fines (up to $40,000), or sequestration of property under s 140(6) of the Employment Relations Act 2000

[COSTS ORDER: This determination relates to costs only, following substantive determinations on the merits issued separately.]

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Applicant: Volha Daniliuk (employee)
Respondent 1: For The Boys Limited (employer)
Respondent 2: Big Black Sacks New Zealand Limited (employer)

Applicant: Aliaksandra Andreyuk, Advocate (firm not provided)
Respondent 1: Jeremy Ansell and Nicole Meech, Counsel (firm not provided)
Respondent 2: No appearance

Ms Daniliuk brought personal grievance claims for unjustified dismissal and unjustified disadvantage against For The Boys Limited (FTB) and Big Black Sacks New Zealand Limited (BBS), together with a breach of good faith claim. All of those claims were unsuccessful. However, in a substantive determination dated 1 April 2026, the Authority found that FTB had breached s 4 of the Wages Protection Act 1983 and the parties' employment agreement by withholding Ms Daniliuk's final accrued leave payment, and ordered FTB to pay a penalty of $2,000, the full amount of which was directed to Ms Daniliuk. No order was made against BBS in the substantive determination. Costs were reserved in both the preliminary and substantive determinations, and the parties were unable to agree on costs. Ms Daniliuk subsequently filed a challenge to the Employment Court and sought a stay of the costs determination pending that challenge; FTB sought costs at the notional daily tariff plus uplifts for a reasonable Calderbank offer declined by Ms Daniliuk and for costs incurred in preparing costs submissions.

1. Whether costs should be stayed pending Ms Daniliuk's challenge to the Employment Court — status: (Dismissed)
2. Whether costs should lie where they fall rather than following the event — status: (Dismissed)
3. Whether the notional daily tariff applies as the starting point for costs, and what that starting point should be — status: (Established)
4. Whether a costs order should be made against BBS — status: (Dismissed)
5. Whether FTB's conduct (alleged shifting and inconsistent positions) justifies a reduction in the costs award — status: (Dismissed)
6. Whether Ms Daniliuk's unreasonable rejection of FTB's Calderbank offer justifies an uplift on the daily tariff — status: (Partially established)
7. Whether an uplift for FTB's preparation of costs submissions is appropriate — status: (Dismissed/not addressed separately)
8. Whether Ms Daniliuk's financial hardship justifies a reduction in the costs award or affects the payment terms — status: (Partially established — relevant to payment terms only)

1. Ms Daniliuk applied for a stay of the costs determination pending her Employment Court challenge. The Authority held that the usual practice is to issue a costs determination so the Court has it before it when hearing any challenge, and that there was no risk of duplication or prejudice to Ms Daniliuk in proceeding. The Authority declined to stay the costs determination and issued it in the ordinary course.
2. Ms Daniliuk argued that costs should lie where they fall, pointing to FTB's penalty for withholding final pay, alleged complexity caused by FTB's positions, and financial hardship. The Authority applied the well-established principle from *PBO Limited (formerly Rush Security Ltd) v Da Cruz* [2005] 1 ERNZ 808 that costs generally follow the event. Because FTB and BBS successfully defended all substantive claims (other than the penalty), the Authority found no good reason to depart from that principle.
3. The Authority confirmed the notional daily tariff as the starting point: $4,500 for the first day of hearing and $3,500 for subsequent days, with a half-day rate applied to the preliminary matter determined on the papers. The combined starting point was calculated at $6,250, reflecting a half-day for the preliminary matter and a full day for the substantive investigation meeting.
4. The Authority declined to make any costs order against BBS. No costs submissions were received from BBS, and its minimal engagement with the proceedings meant that an award against it would not sit comfortably in principle. This issue was resolved in Ms Daniliuk's favour to this extent.
5. Ms Daniliuk alleged that FTB had been unresponsive and had shifting, inconsistent positions on employment status and pay, which she said unnecessarily increased costs and should justify a reduction. The Authority found there was insufficient evidence before it to support any reduction in costs on that basis and declined to reduce the tariff for this reason.
6. FTB made a valid Calderbank offer on 18 December 2024 — more than a year before the investigation meeting — at a total value considerably higher than the penalty ultimately awarded, including payment of the outstanding leave entitlement. Ms Daniliuk declined it on 19 December 2024, and her contemporaneous email confirmed she was aware of the costs consequences. The Authority applied the principle from *Bluestar Print Group (NZ) Ltd v Mitchell* [2010] NZCA 385 that non-acceptance of a reasonable without-prejudice offer can affect costs, and drew on recent Authority decisions including *Thing v South Pole IP Holding* [2025] NZERA, *Knight v AsureQuality Ltd* [2025] NZERA 833, and *Weston v MCNZ Group Ltd* [2025] NZERA 799. The Authority was satisfied the offer was reasonable and made well before preparation costs were incurred. However, consistent with the approach in *Thing v South Pole IP Holding*, the Authority held that the fact a breach of employment standards was found (resulting in a penalty) was not itself a reason to uplift costs further. Balancing these factors, an uplift of $1,000 was applied, bringing the total to $7,250. FTB's request for a higher uplift of $5,000 was not accepted.
7. FTB sought a further uplift of $2,000 for preparation of costs submissions, on the basis Ms Daniliuk had refused to agree to any costs contribution. The Authority did not expressly address this as a separate ground, and no separate uplift was awarded for costs submissions preparation. This item was effectively absorbed into the overall assessment and modest uplift awarded.
8. Ms Daniliuk provided evidence of financial hardship by affidavit. The Authority did not reduce the quantum of the costs award on this basis but took the financial circumstances into account in ordering payment in two equal instalments: $3,625 within 28 days and $3,625 within 60 days of the determination.

The costs claim was partially upheld: Ms Daniliuk is ordered to pay FTB costs of $7,250 (daily tariff of $6,250 plus $1,000 uplift for the unreasonable rejection of a Calderbank offer); no costs order was made against BBS.

Costs award against Ms Daniliuk in favour of FTB: $7,250, payable in two equal instalments of $3,625 — the first within 28 days of the determination and the second within 60 days of the determination.
No costs order against BBS.
No other remedy ordered.

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Applicant: Raheel Reddy (employee, barber)
Respondent: Studio Image Limited (employer, barbershop operator)

Applicant: Hayley Johnson, advocate for the Applicant
Respondent: Sidhant Thapa (director of Respondent, appearing for Respondent)

Raheel Reddy was employed as a barber at Studio Image Limited's Auckland barbershop from 26 May 2023 until 17 September 2024. On 17 September 2024, Mr Reddy was running late to work because he was viewing a replacement car following a motor vehicle accident the previous week. While he was still away from the barbershop that afternoon, Studio Image's sole director, Mr Thapa, sent Mr Reddy a text message advising him he would be paid out his accrued leave, instructing him to collect his tools the next day, and wishing him well — effectively ending the employment. Studio Image's position was that Mr Reddy had resigned by his own conduct and behaviour, while Mr Reddy maintained he was dismissed. Studio Image failed to attend the investigation meeting on time, did not lodge any evidence in accordance with the agreed timetable, and provided no submissions at the hearing. Mr Reddy raised claims of unjustified dismissal, breach of good faith, and (subsequently withdrawn) statutory penalties; he also sought costs.

1. Whether a dismissal occurred (i.e. whether the employment ended at the employer's initiative or by resignation) — status: (Established)
2. Whether Mr Reddy was unjustifiably dismissed under s 103A of the Employment Relations Act 2000 (the Act) — status: (Established)
3. Whether Mr Reddy is entitled to lost wages under ss 123(1)(b) and 128 of the Act — status: (Partially established)
4. Whether Mr Reddy is entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Act — status: (Established)
5. Whether any remedy should be reduced under s 124 of the Act for Mr Reddy's blameworthy contributory conduct — status: (Established)
6. Whether Studio Image breached the duty of good faith and whether a penalty should be ordered under s 4A of the Act — status: (Dismissed)
7. Whether penalties under s 130 of the Act, s 4 of the Wages Protection Act 1983, and s 27 of the Holidays Act 2003 should be ordered — status: (Dismissed — withdrawn by applicant)
8. Whether either party is entitled to an award of costs — status: (Not reached — reserved)

1. **Whether a dismissal occurred**
2. The Authority applied the principle that a dismissal is the termination of the employment relationship at the employer's initiative — a "sending away" — and does not require formal written notice (citing *Wellington, Taranaki and Marlborough Clerical Etc IUOW v Greenwich* (1983) ERNZ Sel Cas 95 (AC)). The Authority found Mr Thapa's text messages (paying out leave, directing collection of tools, wishing Mr Reddy well) were consistent with a "sending away," notwithstanding Studio Image's position that Mr Reddy resigned. Late-stage video evidence and solicited client statements tendered by Mr Thapa were found irrelevant: the video post-dated the employment, and the statements were not lodged in accordance with the timetable. The Authority accepted Mr Reddy's evidence and concluded that a dismissal occurred on 17 September 2024.
3. **Whether the dismissal was unjustified under s 103A**
4. The test under s 103A(2) is whether the employer's actions, and how it acted, were what a fair and reasonable employer could have done in all the circumstances at the time. The Authority was also required to consider the specific factors in s 103A(3), including whether concerns were raised with the employee, whether a reasonable opportunity to respond was given, and whether the employer genuinely considered any explanation. The Authority found Studio Image failed every minimum procedural fairness requirement: it did not sufficiently investigate concerns (s 103A(3)(a)), did not raise concerns with Mr Reddy (s 103A(3)(b)), did not give him any opportunity to respond (s 103A(3)(c)–(d)), and failed to meet its good faith obligations under s 4(1A)(c) of the Act. The dismissal was therefore unjustified.
5. **Entitlement to lost wages under ss 123(1)(b) and 128**
6. Under s 123(1)(b) and s 128, an employee is entitled to reimbursement of remuneration lost as a result of the grievance, subject to a cap of three months' ordinary time remuneration unless the Authority exercises its discretion to award more. Mr Reddy sought 19 weeks' lost wages but provided no cogent reason to exceed the three-month cap; accordingly, the Authority declined to award 19 weeks. Using actual payslip data (which showed Mr Reddy averaged 36.21 hours per week in his final three months, not the 38.5 hours he claimed), the Authority awarded 13 weeks' lost remuneration at $30.00 per hour, totalling $14,121.90 gross.
7. **Compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i)**
8. The Authority accepted Mr Reddy's uncontested evidence that he experienced significant stress, uncertainty, and ongoing distress following his dismissal. Applying the standard from *Wikaira v Chief Executive of the Department of Corrections* [2016] NZEmpC 175, compensation should be fair, realistic, and not miserly. Having regard to the circumstances and comparable awards, the Authority determined $13,500 was appropriate before any reduction for contribution.
9. **Reduction for contributory conduct under s 124**
10. The Authority applied the four-step framework from *Maddigan v Director-General of Conservation* [2019] NZEmpC 190: (a) was the conduct culpable/blameworthy; (b) did it contribute to the situation; (c) what is a fair extent of contribution; (d) to which remedies should the reduction apply. The Authority found Mr Reddy's conduct in respect of punctuality and attendance was blameworthy and causally connected to the dismissal (he had recently received warnings for the same issues). The conduct was not at the upper range; a 20% reduction was appropriate. The reduction was applied only to the s 123(1)(c)(i) compensation award (not to lost wages), reducing it from $13,500 to $10,800.
11. **Breach of good faith and penalty under s 4A**
12. The Authority noted the threshold for a penalty is high: the breach must be deliberate, serious, and sustained (s 4A(a)) or intended to undermine the employment relationship (s 4A(b)(iii)). While the Authority acknowledged aspects of Studio Image's conduct may not have complied with good faith obligations (particularly s 4(1A)(b) — being active and constructive in maintaining a productive relationship), it concluded this was not a situation warranting a penalty. The personal grievance remedies already awarded were found to adequately address Studio Image's failure to discharge its good faith obligations, and the Authority declined to exercise its discretion to order a penalty.
13. **Penalties under s 130 of the Act, s 4 of the Wages Protection Act 1983, and s 27 of the Holidays Act 2003**
14. These claims were withdrawn by Mr Reddy during the course of the investigation meeting and were therefore not determined on their merits.
15. **Costs**
16. Costs were reserved. The parties were encouraged to resolve costs themselves. If unresolved, Mr Reddy may file a costs memorandum within 28 days; Studio Image then has 14 days to respond. The Authority indicated it would assess costs on the usual daily tariff basis if required to determine the matter.

The claim was partially upheld: unjustified dismissal was established, lost wages and compensation were awarded (with a 20% reduction for contribution applied to the compensation award), and the good faith penalty claim and withdrawn statutory penalty claims were dismissed; costs were reserved.

- **Lost wages (ss 123(1)(b) and 128):** $14,121.90 gross (36.21 hours/week × $30.00/hour × 13 weeks), plus 8% holiday pay on this sum and KiwiSaver compliance obligations if applicable.
- **Compensation for humiliation, loss of dignity, and injury to feelings (s 123(1)(c)(i)):** $10,800 (being $13,500 reduced by 20% for contributory conduct).
- **Penalty (s 4A):** None ordered.
- **Costs:** Reserved; subject to further process or agreement between the parties.
- Payment due within 28 days of the date of the written record of the oral determination (i.e., by 23 June 2026).

Applicant: Natalie Butler-Smith (employee)
Respondent: David and Dale Cavey t/a DG and DV Cavey Partnership (employer)

Applicant: William Lynch, advocate (firm not provided)
Respondent: No appearance

Natalie Butler-Smith was employed as a part-time permanent farm assistant by the DG and DV Cavey Partnership from around August 2022. She fell pregnant during her employment and went on parental leave in mid-August 2023, with her baby born on 6 September 2023. During parental leave, she attended the workplace approximately twice a month to assist with farm paperwork, for which she was not paid. On 13 February 2024, six days before her scheduled return to work on 19 February 2024, she was told her employment was being terminated due to health and safety concerns about having a baby on the farm; written confirmation followed on 20 February 2024. Ms Butler-Smith raised claims for unpaid wages during parental leave, lost wages for the period she was unemployed after dismissal, unpaid notice, and compensation for humiliation and injury to feelings, asserting her dismissal was unjustified. The Partnership did not attend the investigation meeting and did not engage in proceedings, though it was aware of them.

1. Whether to proceed in the absence of the Respondent — (Established: Authority proceeded)
2. Whether Ms Butler-Smith's dismissal was unjustified under the Employment Relations Act 2000 (the Act) — (Established)
3. Whether Ms Butler-Smith contributed in a blameworthy way to her personal grievance under s 124 of the Act — (Dismissed: no contributory blameworthy conduct found)
4. Whether Ms Butler-Smith was entitled to unpaid wages for work performed during parental leave ($192.00) — (Established)
5. Whether Ms Butler-Smith was entitled to lost wages for the 13-week period she was unemployed following dismissal ($9,360.00) — (Established)
6. Whether Ms Butler-Smith was entitled to payment in lieu of the four-week notice period provided for in her Employment Agreement ($2,880.00) — (Established)
7. Whether Ms Butler-Smith was entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Act — (Partially established: $20,000 awarded of $25,000 claimed)
8. Whether a penalty should be imposed for the non-provision of wage, time, and leave records in breach of the Employment Relations Act 2000 — (Not reached/deferred)
9. Costs — (Reserved)

1. The Authority considered whether to proceed in the Respondent's absence, given the Partnership had not attended or engaged. The Authority adjourned the commencement of the investigation meeting for 15 minutes to allow the Partnership an opportunity to contact it if they had been unable to join. No contact was made, and the Authority was satisfied the Partnership was aware of the proceedings and had been sent an audiovisual link, and so proceeded in its absence.
2. The Authority found the dismissal was unjustified. The Partnership gave no substantive justification for the termination and was not present to do so. The Authority accepted Ms Butler-Smith's unchallenged evidence that the sole reason given was a blunt assessment that she could not bring a baby onto the farm for health and safety reasons, with no opportunity given to explore the validity of that conclusion or consider alternatives. The absence of any procedural fairness reinforced the finding of unjustified dismissal.
3. Under s 124 of the Act, the Authority is required to consider whether the employee contributed in a blameworthy way to the situation giving rise to the personal grievance, which can reduce any remedy. The Authority found no such contribution on Ms Butler-Smith's part. No reduction to remedies was applied.
4. Ms Butler-Smith gave evidence that she attended the workplace twice a month during parental leave to assist with paperwork (the Dairy Diary and shed checklist), totalling approximately two hours per month over four months, for which she was not paid. Because the Partnership had not provided wage and time records despite being requested to do so, the Authority accepted Ms Butler-Smith's account and awarded $192.00 for this unpaid work.
5. The Authority accepted Ms Butler-Smith's evidence that she was unable to find work for 13 weeks following the termination of her employment. Applying her hourly rate of $24.00 at an average of 30 hours per week for 13 weeks, the Authority awarded $9,360.00 as compensation for lost wages during this period.
6. Ms Butler-Smith's Employment Agreement provided for a four-week notice period that was not honoured by the Partnership upon dismissal. The Authority accepted this entitlement and awarded $2,880.00 representing four weeks' pay at the applicable rate.
7. Under s 123(1)(c)(i) of the Act, the Authority may award compensation for humiliation, loss of dignity, and injury to feelings arising from an unjustified dismissal. The Authority noted Ms Butler-Smith's evidence was "poignant," describing the significant emotional and financial pressure she faced as a first-time mother who expected to return to work, and the lasting effect the unexpected dismissal had on her parenting experience and sense of wellbeing. While Ms Butler-Smith claimed $25,000, the Authority awarded $20,000, reflecting the serious impact of the dismissal but not granting the full amount claimed.
8. Ms Butler-Smith raised the non-provision of wage, time, and leave records as a breach of the Employment Relations Act 2000. The Authority acknowledged this issue but declined to impose a penalty in the absence of the Partnership, stating it was reluctant to do so without further explanation from the Respondent. This issue was effectively deferred without resolution, and no penalty was imposed at this stage.
9. Costs were reserved. The parties were encouraged to resolve costs between themselves. If agreement could not be reached, Ms Butler-Smith was directed to file a memorandum on costs within 28 days of the determination, with the Partnership then having 14 days to lodge any reply. The Authority indicated it may determine costs upwards or downwards if required to do so.

The claim was substantially upheld: unjustified dismissal was established, all wage and notice claims were awarded in full, and compensation for humiliation was awarded at $20,000 (reduced from the $25,000 claimed); the penalty issue for non-provision of records was deferred.

- Unpaid wages (work during parental leave): $192.00
- Lost wages (13 weeks' unemployment post-dismissal): $9,360.00
- Unpaid notice period (4 weeks): $2,880.00
- Compensation for humiliation, loss of dignity, and injury to feelings (s 123(1)(c)(i)): $20,000.00
- **Total payable within 28 days: $32,432.00**
- Penalty for non-provision of wage/time/leave records: None ordered at this stage (deferred pending further explanation)
- Costs: Reserved; parties encouraged to resolve between themselves; memorandum process prescribed if required.

Applicant: Lee Mark Pownall (employee/former chief executive)
Respondent: Hutt Valley Youth Health Trust ("Vibe") (employer)

Applicant: Lee Pownall, self-represented
Respondent: Frances Lear, counsel for the Respondent (firm not provided)

Mr Pownall commenced employment with Vibe as its chief executive. Issues arose concerning his management style, leading to negotiations between the parties. On 7 June 2024, Mr Pownall and Vibe entered into a Record of Settlement (RoS), which was certified by an MBIE mediator under s 149 of the Employment Relations Act 2000. From late 2024 onwards, Mr Pownall alleged Vibe had breached the RoS in multiple ways, including delaying provision of a certificate of service, refusing to provide an agreed reference, acting in bad faith, committing fraud, misusing the RoS to cover a Privacy Act breach, and having induced him to sign the RoS under duress. Vibe denied all allegations, asserting full compliance with the RoS and maintaining the RoS was final and binding and could only come before the Authority for enforcement purposes. An investigation meeting was held on 2 December 2025 in Wellington, with further submissions received up to 15 May 2026.

1. Whether Vibe breached the RoS by delaying provision of the certificate of service — status: (Dismissed)
2. Whether Vibe breached the RoS by refusing to provide an agreed written reference — status: (Dismissed)
3. Whether Vibe acted in bad faith or committed fraud in relation to its obligations under the RoS — status: (Dismissed)
4. Whether clause 14 of the RoS constituted a misuse of the RoS or breached the Privacy Act 2020 — status: (Dismissed)
5. Whether Mr Pownall entered into the RoS under duress, rendering it voidable — status: (Dismissed)
6. Whether there are grounds to set aside the RoS — status: (Dismissed)
7. Whether Mr Pownall is entitled to compensation for lost earnings ($82,400) — status: (Dismissed)
8. Whether Mr Pownall is entitled to compensation for emotional harm — status: (Dismissed)
9. Whether a compliance order should be issued requiring Vibe to provide a written reference — status: (Dismissed)
10. Whether a declaration should be made that the privacy-related clause in the RoS is void — status: (Dismissed)
11. Whether a penalty should be imposed for breach of good faith — status: (Dismissed)
12. Costs — status: (Not reached/Reserved)

1. **Delayed certificate of service:** The RoS required Vibe to provide a certificate of service if requested. The evidence showed the certificate was sent to Mr Pownall on 8 July 2024, shortly after his request. When he later claimed in November 2024 not to have received it, Vibe resent it. There was no evidence that Mr Pownall had contacted Vibe earlier to flag non-receipt. The Authority found no breach of the RoS on this point and dismissed the claim.
2. **Refusal to provide an agreed written reference:** Mr Pownall claimed Vibe refused a written reference, but clause 7 of the RoS only obliged Vibe to provide a verbal reference upon request. There was no evidence any verbal reference had ever been requested. Additionally, Mr Pownall's own November 2024 email confirmed he no longer required a written reference. As no obligation to provide a written reference existed and no request for a verbal reference was made, this claim was dismissed.
3. **Bad faith and fraud:** Mr Pownall alleged bad faith and fraud based primarily on the alleged delay in providing the certificate and refusal of a reference. The Authority found Mr Pownall had no evidence of misrepresentation by Vibe regarding the certificate; the email record showed it had been sent and resent upon request. No misrepresentation or fraud was established, and the claim was dismissed.
4. **Misuse of RoS / Privacy Act breach:** Mr Pownall argued clause 14 of the RoS unlawfully restricted his Privacy Act 2020 rights. The Authority read clause 14 as resolving only the specific Privacy Act request Mr Pownall had made before entering the RoS, not extinguishing any future right to make a further Privacy Act request. On a plain reading, nothing in the clause prevented him from making a fresh request. No breach of the Privacy Act was established, and this claim was dismissed.
5. **Duress:** The Authority applied the test from *McIntyre v Nemesis DBK Limited* [2009] NZCA 329, which requires (a) the exertion of illegitimate pressure and (b) that such pressure compelled the victim to enter the agreement. The Authority found no evidence satisfying either element: Mr Pownall had been given the opportunity to take advice before settling, he accepted payments under the RoS without protest, engaged in correspondence about the certificate without raising duress, and did not raise duress until October 2025 — over a year after signing. His reliance on the without-prejudice settlement offer of 20 May 2024 as evidence of duress was rejected; that offer had been renegotiated in his favour before signing. The Authority concluded he did not enter the RoS under duress and dismissed this claim.
6. **Grounds to set aside the RoS:** Section 149 RoS agreements are generally final, binding, and only come before the Authority for enforcement. The Court has recognised narrow exceptions (including duress) where it may be permissible to go behind a settlement agreement. Having found no duress and no breach by Vibe, the Authority concluded there were no grounds on which the RoS could be set aside and that Vibe had complied with its terms.
7. **Compensation for lost earnings ($82,400):** As no breach of the RoS and no grounds to set it aside were found, there was no basis for awarding compensation for lost earnings. Dismissed.
8. **Compensation for emotional harm:** Similarly, because no breach or actionable conduct by Vibe was established, there was no foundation for an emotional harm award. Dismissed.
9. **Compliance order for written reference:** No written reference obligation existed under the RoS, and no verbal reference had been requested. There was no basis for a compliance order. Dismissed.
10. **Declaration that privacy clause is void:** The Authority found clause 14 could not offend the Privacy Act 2020 as it only settled a prior specific Privacy Act request and did not bar future requests. No declaration was warranted. Dismissed.
11. **Penalty for breach of good faith:** As no breach of good faith was established, there was no basis for imposing a penalty. Dismissed.
12. **Costs:** Costs were reserved. The parties were encouraged to resolve costs between themselves. If unable to agree, Vibe may lodge a memorandum on costs within 28 days of the determination, with Mr Pownall having 14 days to reply. The Authority indicated it would assess costs on the usual upward or downward basis if required to determine them.

The claim was dismissed in full; the Authority found Vibe had complied with the Record of Settlement and that there were no grounds to set it aside or award any of the remedies sought.

None ordered. Costs reserved, with a process set out for the parties to resolve costs by agreement or by memorandum within the specified timeframes.

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Applicant: Timothy Ryder (employee)
Respondent: Leopard Lime Limited (employer)

Applicant: Dave Cain, Advocate (firm not provided)
Respondent: No appearance

Mr Ryder had previously obtained two substantive determinations against Leopard Lime Limited (LL), issued on 13 May 2025 ([2025] NZERA 266) and 27 August 2025 ([2025] NZERA 530), in which LL was ordered to pay compensation for a personal grievance, lost wages, costs, and disbursements. LL failed to comply with those orders and made no engagement with these proceedings. Mr Ryder filed an affidavit sworn on 13 April 2026 confirming the amounts remained outstanding. Mr Ryder sought a compliance order requiring LL to pay the outstanding sums and a further order directed at Gordon James Eade, LL's sole director and shareholder, requiring him to take steps to ensure LL had sufficient funds to meet its obligations. The matter was determined on the papers.

1. Whether a compliance order should be made requiring Leopard Lime Limited to pay the amounts outstanding under the prior determinations — (Established)
2. Whether an order should be made requiring Gordon James Eade, as sole director and shareholder, to take steps to ensure LL has sufficient funds to meet its payment obligations — (Established)
3. Whether Mr Ryder is entitled to a contribution towards legal costs incurred in bringing this compliance application — (Established)

1. The Authority considered whether it was just in the circumstances to make a compliance order requiring LL to pay the amounts outstanding under the two prior determinations. LL had not engaged with the proceedings and had failed to comply with the earlier orders within the 28-day timeframes specified. The Authority found it just to make a compliance order and directed LL to pay the total outstanding sum of $29,616.55 (comprising the $20,000 compensation under s 123(1)(c)(i) of the Employment Relations Act 2000, $3,920 in lost wages under ss 123(1)(b) and 128 of the Act, $5,625 in costs, and $71.55 in disbursements) within 28 days of this determination.
2. The Authority considered whether it could make an order directed at Gordon James Eade personally, as LL's sole director and shareholder, to compel him to put LL in a position to meet its obligations. Relying on Northern Clerical Workers Union v Lawrence Publishers Co of New Zealand [1990] NZLR 717, the Authority reasoned that because Eade was the sole director and shareholder with complete control over LL, and because any monies owing to the company (including any overdrawn shareholder account) were within his power to recover, it was appropriate to order him to take the necessary steps — including identifying monies owed to LL (whether by himself or others) and arranging for those to be repaid to LL, which may include the sale of company assets — so that LL could meet its payment obligations to Mr Ryder.
3. The Authority considered whether costs of the compliance application should be awarded to Mr Ryder. Given LL's non-engagement and the necessity of Mr Ryder incurring further legal costs to enforce existing orders, the Authority ordered LL to pay a contribution of $750 towards Mr Ryder's legal costs for this application.

The compliance application was upheld in full: a compliance order was made against Leopard Lime Limited and a further order was made against Gordon James Eade as sole director and shareholder, with costs awarded to Mr Ryder.

- Compliance order requiring Leopard Lime Limited to pay Mr Ryder the total sum of **$29,616.55** within 28 days of this determination, comprising:
- Compensation (s 123(1)(c)(i) of the Employment Relations Act 2000): $20,000
- Lost wages (ss 123(1)(b) and 128): $3,920
- Prior costs award: $5,625
- Prior filing fee/disbursement: $71.55
- Order directed at Gordon James Eade (sole director and shareholder): he must identify monies owed to Leopard Lime Limited (including any overdrawn shareholder account) and ensure they are repaid to the company, including by sale of company assets if necessary, so that LL can meet its payment obligations to Mr Ryder.
- Costs contribution for this compliance application: **$750** payable by Leopard Lime Limited to Mr Ryder.

Applicant: Kelvin Lewis Taylor (alleged casual employee / Brand Ambassador)
Respondent: Destro Limited (employer / marketing agency)

Applicant: Self-represented
Respondent: Matthew Etcheson and Grace Guy, counsel for the Respondent

Destro Limited is a marketing agency that engages Brand Ambassadors as independent contractors to work on experiential marketing campaigns for its clients. Mr Taylor was approached by Destro in November 2024 following an unpaid appearance on a YouTube dating show, and on 17 November 2024 he signed a Brand Ambassador Services Agreement which expressly described him as an independent contractor. Mr Taylor worked on six campaigns totalling approximately 30.25 hours between November 2024 and April 2025, invoicing Destro for each and having 20% withholding tax deducted. In April 2025, Mr Taylor sought to be put forward as host for a client's show; the client declined due to prior negative feedback about him, and Destro relayed that feedback to him. Mr Taylor alleged this, and other conduct, constituted breaches of the Agreement, defamation, breach of the Worker Protection (Migrant and Other Employees) Act 2023, and discrimination under the Human Rights Act 1993. Destro disputed all claims and challenged the Authority's jurisdiction on the basis that Mr Taylor was an independent contractor, not an employee. The parties agreed the jurisdictional question would be determined on the papers before any substantive claim was progressed.

1. Were the parties in an employment relationship — i.e., was Mr Taylor an "employee" within the meaning of s 6 of the Employment Relations Act 2000? (Status: Dismissed)
2. Does the Authority have jurisdiction over Mr Taylor's defamation claim? (Status: Dismissed / Not reached)
3. Does the Authority have jurisdiction over Mr Taylor's breach of the Worker Protection (Migrant and Other Employees) Act 2023 claim? (Status: Dismissed / Not reached)
4. Does the Authority have jurisdiction over Mr Taylor's breach of the Human Rights Act 1993 (racial and gender discrimination) claim? (Status: Dismissed / Not reached)
5. What costs and disbursements should be awarded to the successful party? (Status: Partially established — quantum deferred)

1. The Authority applied s 6(1), (2) and (3) of the Employment Relations Act 2000, which requires an objective assessment of the "real nature of the relationship," considering all relevant matters including contractual terms, how the relationship operated in practice, and the parties' intentions (without any single factor being determinative). The Authority followed the two-step inquiry endorsed by both the Court of Appeal and Supreme Court in *Rasier Operations BV v E Tu Inc* and the earlier Supreme Court principles from *Bryson v Three Foot Six*, applying the control, integration, and economic reality tests. Across all indicators — the express contractual terms (labelling the arrangement as independent contracting, no guaranteed work, no minimum hours, no leave entitlements, responsibility for own tax and ACC), the practical operation of the relationship (freedom to accept or decline campaigns, no disciplinary or performance management, no Destro uniform or email, ability to work for competitors), the parties' mutual intention, and Mr Taylor's conduct as someone in business on his own account — the evidence overwhelmingly pointed to an independent contractor arrangement. One administrative error (Destro's payslips incorrectly labelling withholding tax as PAYE and referring to "employment details") was noted but did not override all other evidence. The Authority concluded Mr Taylor was not an employee and had not established an employment relationship on the balance of probabilities.
2. Because the Authority found there was no employment relationship, it had no jurisdiction under the Employment Relations Act 2000 to investigate the defamation claim. This issue was not reached on its merits; the absence of an employment relationship was wholly dispositive of jurisdiction.
3. For the same reason — no employment relationship established — the Authority held it lacked jurisdiction to investigate the alleged breach of the Worker Protection (Migrant and Other Employees) Act 2023. This issue was not reached on its merits.
4. Similarly, without an employment relationship, the Authority held it had no jurisdiction to investigate the alleged breaches of the Human Rights Act 1993 relating to racial and gender discrimination. This issue was not reached on its merits.
5. As the successful party, Destro was found entitled to a contribution towards its actual legal costs. The Authority treated the matter as a half-day investigation, setting the notional starting point at $2,250 (half the daily tariff of $4,500 for the first day of an investigation meeting). The parties were encouraged to agree on costs, but if not resolved, Destro was given 28 days from the determination to file costs submissions, with Mr Taylor having 14 days to reply. Proof of actual legal costs incurred and any submissions on adjustment of the tariff were required. The final quantum of costs was deferred pending those submissions.

The claim was dismissed in its entirety: the Authority found Mr Taylor was an independent contractor, not an employee, and accordingly had no jurisdiction to investigate any of his claims against Destro Limited.

None ordered (no employment relationship established; all substantive claims dismissed for want of jurisdiction). Costs: A notional starting point of $2,250 was identified, but the final costs determination is deferred pending costs submissions from both parties (Destro has 28 days to file; Mr Taylor has 14 days to reply). No final costs order has been made at this stage.

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Applicant: Mujahid Khan (employee)
Respondent: The Chief Executive of the Ministry for Primary Industries (employer)

Applicant: Ronald Jones, advocate
Respondent: Stephen Wakem, counsel

Mujahid Khan was employed by the Ministry for Primary Industries (MPI) as a senior quarantine officer for 18 years under a collective agreement with the PSA. His employment was terminated on 6 October 2025 following an investigation into two complaints: first, that on 10 June 2025 he pressured a junior female colleague (RTH) to accompany him to a friend's house for lunch during work hours (also involving use of an MPI vehicle for a personal purpose); and second, that on 12 June 2025 he raised his voice at a colleague (XYZ). MPI classified the lunch incident and the vehicle policy breach as serious misconduct and the voice-raising incident as misconduct, and took into account a prior warning issued on 14 August 2024 before deciding to dismiss. Mr Khan disputed the characterisation of both incidents and raised concerns that the complaints had been colluded upon, noting that three family members present at the lunch provided statements confirming RTH appeared comfortable. Mr Khan raised a personal grievance on 15 October 2025, attended mediation, and on 27 March 2026 applied to the Authority for interim reinstatement. The application was heard on the papers and by AVL on 11 May 2026.

1. Whether the names and identifying details of complainants and witnesses should be suppressed (non-publication orders) — status: (Established)
2. Whether the amended s 123C of the Employment Relations Act 2000 (ERA), which restricts reinstatement where an employee's conduct contributed to the grievance, applies to this application — status: (Dismissed — repealed legislation applies)
3. Whether Mr Khan has an arguable case (serious question to be tried) for unjustified dismissal — status: (Established)
4. Whether there is an arguable case for permanent reinstatement — status: (Established)
5. 4(a) Whether loss of trust and confidence makes reinstatement impracticable or unreasonable — status: (Dismissed)
6. 4(b) Whether Mr Khan's allegations of staff collusion undermine reinstatement — status: (Dismissed)
7. 4(c) Whether the impact on complainants and third parties makes reinstatement impracticable or unreasonable — status: (Dismissed)
8. 4(d) Whether Mr Khan's role-specific skills and the revocation of his statutory warrant make reinstatement impracticable — status: (Dismissed)
9. 4(e) Whether delay in bringing the application bars interim reinstatement — status: (Dismissed)
10. Whether the balance of convenience favours interim reinstatement — status: (Established)
11. Whether overall justice favours interim reinstatement — status: (Established)
12. Costs — status: (Not reached — reserved)

1. **Non-publication orders:** The Authority applied the two-step test from *MW v Spiga Ltd* [2024] NZEmpC 147: first, whether specific adverse consequences could reasonably be expected; second, whether those consequences justify departing from open justice. The Authority accepted MPI's submission that the material involved sensitive workplace matters and that there is a public interest in allowing individuals to participate in employment processes without fear of exposure, and noted that the complainants have a legitimate privacy interest as non-parties (citing *Scott v Damar Industries Limited* [2025] NZEmpC 215). The application was proportionate and targeted. Orders were made suppressing the names and identifying details of complainants and witnesses, who are referred to by initials unrelated to their actual names.
2. **Applicability of amended s 123C ERA:** The Authority considered whether the new s 123C (inserted 21 February 2026), which bars reinstatement if the employee's conduct contributed to the grievance, applied to this application lodged on 27 March 2026. Applying s 33 of the Legislation Act 2019 and the Court of Appeal's reasoning in *Ramkissoon v Commissioner of Police* [2018] NZCA 304, the Authority held that the relevant "existing right" arose on 6 October 2025 — the date of dismissal — which predated the amendment. Accordingly, the application was assessed under the pre-amendment legislation, and s 123C did not apply.
3. **Arguable case for unjustified dismissal:** The threshold for a serious question to be tried is low — the claim must not be vexatious or frivolous (*Jung v Asian Savour World Pty Limited* [2026] NZEmpC 82). The Authority found it was unclear on what basis MPI classified the lunch incident as "serious misconduct" as defined in its own policies (acts fatal to the employment relationship), noting that the termination letter did not map Mr Khan's conduct to any specific policy category of serious misconduct, and did not explain why lesser categories of misconduct and a warning were not considered instead. The Authority also questioned whether the prior warning (relating to bullying and an inappropriate comment) was sufficiently similar in nature to be relied upon in mitigation of a dismissal arising from these events. The Authority concluded Mr Khan has an arguable case for unjustified dismissal.
4. **Arguable case for permanent reinstatement:** Under s 125(2) ERA, reinstatement must be provided wherever practicable and reasonable. The Authority addressed each of MPI's objections in turn, applying *Christieson v Fonterra Co-Operative Group Limited* [2021] NZEmpC 142.
5. 4(a) *Loss of trust and confidence:* The Authority found MPI's claimed loss of trust was not made out on the facts. Mr Khan's failure to accept responsibility flowed from his genuine belief that RTH had voluntarily attended the lunch (supported by RTH stopping to purchase her own lunch on the way). The Authority concluded this did not provide a reasonable basis for a finding of untrustworthiness, citing *Scott v Damar Industries Limited*.
6. 4(b) *Allegations of collusion:* The Authority accepted that Mr Khan's concerns about the timing of the two complaints, raised in context and with reference to a prior difficult relationship with XYZ, were legitimate and should not be used against him on a reinstatement application.
7. 4(c) *Impact on third parties/complainants:* The Authority noted the mobile and rotational nature of Mr Khan's role (covering the airport, ports, mail facilities and vessels) reduced the likelihood of daily interaction with the complainants. There was no evidence before the Authority that the complainants could not work with Mr Khan. The Authority distinguished *Scott v Damar Industries Limited*, where the broken working relationship was with the employee's direct manager, a materially different situation.
8. 4(d) *Statutory warrant and role-specific skills:* MPI argued Mr Khan's warrant had been revoked and he could not be re-warranted. The Authority held that s 103(4) of the Biosecurity Act 1993 does not appear to create a statutory impediment to re-appointment, noting the requirements relate to competence and qualifications, not character. The starting point for reinstatement is return to the substantive role (*s 123(1)(a) ERA*), and redeployment was not a relevant consideration as Mr Khan was capable of returning to his prior role.
9. 4(e) *Delay:* Mr Khan was dismissed on 6 October 2025, raised a grievance on 15 October 2025, attended mediation, changed representative, arranged legal aid, and filed on 27 March 2026. The Authority accepted his explanation for the delay, noting no evidence of material prejudice to MPI and that the delay was not significant in length.
10. On balance, the Authority found it both practicable and reasonable to reinstate Mr Khan.
11. **Balance of convenience:** The balance of convenience test focuses on the relative positions of the parties during the interim period, including adequacy of damages, preservation of the status quo, and relative case strength (*Stellar Elements New Zealand Limited v Amesbury* [2024] NZEmpC 36). The Authority distinguished *Scott v Damar Industries Limited* (broken direct-manager relationship) and *FHE v Auckland Transport* [2026] NZEmpC 73 (public safety and reputational risks). In Mr Khan's case there was no evidence of a broken working relationship with the complainants to the extent in *Scott*, and the matter did not involve public-facing risks of the kind in *FHE*. The Authority held the balance of convenience lay with Mr Khan.
12. **Overall justice:** The Authority found overall justice favoured interim reinstatement. Mr Khan had 18 years' service; the dismissal had significantly impacted his financial situation; damages would be an inadequate remedy given the reasonably unique and specialised nature of the quarantine officer role; and money is a poor substitute for loss of employment (citing *Scott v Damar Industries Limited* at [73] and *Vegepod NZ Ltd v Lowe* [2025] NZEmpC). The Authority was satisfied interim reinstatement was warranted.
13. **Costs:** Not resolved. Costs were expressly reserved for later determination.

The application for interim reinstatement was upheld in full; the non-publication application was also granted; the s 123C applicability question was resolved in Mr Khan's favour (pre-amendment law applies); and costs were reserved.

- **Interim reinstatement to payroll:** MPI ordered to reinstate Mr Khan to the payroll within 5 working days of the determination (22 May 2026).
- **Interim reinstatement to position:** MPI ordered to reinstate Mr Khan to his prior position as senior quarantine officer on an interim basis within 7 working days of the determination.
- **Mediation:** Parties directed to attend mediation within 21 days of the determination.
- **Case management conference:** To be convened to progress the matter to a substantive investigation meeting.
- **Non-publication:** Names and identifying details of complainants and witnesses suppressed at this interim stage.
- **Costs:** Reserved.
- *Note: This is an interim order only. The substantive personal grievance claim (including permanent reinstatement and any compensation) remains to be determined at a full investigation meeting.*

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Applicant: Rebecca Hopson (employee)
Respondent: Ulti Group Limited (employer)

Applicant: Sean Maskill, counsel for the Applicant
Respondent: Robert Thompson, advocate for the Respondent

Rebecca Hopson commenced employment with Ulti Group Limited on 14 November 2022 as a Customer Services Representative based at Ulti's Hawera site on a permanent 35-hour-per-week contract. On 23 August 2024, Ulti proposed to disestablish her position due to economic conditions and declining revenue at the Hawera hub; a final decision letter was issued on 5 September 2024, confirming redundancy and setting her notice end date as 3 October 2024. Ms Hopson was on ACC compensation throughout her notice period. She sent emails on 13 and 27 September 2024 expressing dissatisfaction with the process and querying whether a fair process had been followed, and a further email on 2 January 2025 stating she would raise a personal grievance if not satisfied with Ulti's responses; a formal grievance letter was sent by her representative on 27 January 2025. Ulti opposed the grievance on two grounds: first, that Ms Hopson's employment ended on 5 September 2024 (making the 90-day window expire on 4 December 2024), and second, that none of the communications before 27 January 2025 amounted to a properly raised personal grievance. The parties agreed to have the Authority determine the timeliness issue as a preliminary matter on the papers.

1. Whether Ms Hopson's employment ended on 5 September 2024 (the date of the dismissal decision letter) rather than 3 October 2024 (the end of the notice period), for the purpose of calculating the start of the 90-day employee notification period under s 114 of the Employment Relations Act 2000 — (Dismissed)
2. Whether the 90-day employee notification period ended on 31 December 2024 or 3 January 2025 by operation of s 55 of the Legislation Act 2019 (extension for non-working days) — (Not reached)
3. Whether Ms Hopson raised a personal grievance for unjustified dismissal within the 90-day employee notification period under ss 114(1), 114(2), and 114(7) of the Employment Relations Act 2000, by way of her email communications on 13 and 27 September 2024 and/or 2 January 2025 — (Established)
4. Whether costs should be awarded in respect of the preliminary determination — (Conditional/Reserved)

1. Ulti argued that Ms Hopson's employment ended on 5 September 2024 because her ACC compensation covered her wages during the notice period, making the dismissal effective immediately. The Authority rejected this argument, applying the well-established principle that employment ends at the expiry of the notice period rather than when notice is given, even if an employee is told to leave immediately or is paid in lieu (citing Ceres New Zealand LLC v DJK [2020] NZEmpC 153). The Authority also noted that Ulti's own termination letter expressly stated employment would end on 3 October 2024. The payment of ACC weekly compensation was treated simply as being in lieu of Ms Hopson working during her notice period; her employment therefore ended on 3 October 2024.
2. Ms Hopson submitted that, by operation of s 55 of the Legislation Act 2019 (which extends deadlines falling on non-working days to the next working day) and the exclusion of 25 December to 2 January as non-working days, the 90-day period ended on 3 January 2025 rather than 31 December 2024. The Authority did not need to resolve this issue because it found the personal grievance had been raised earlier — during the notice period itself — well within any version of the 90-day period. No determination was therefore made on the application of the Legislation Act 2019.
3. The Authority applied the test in ss 114(1), 114(2), and 114(7) of the Act: a grievance is raised when the employee has made, or taken reasonable steps to make, the employer aware that the employee alleges a personal grievance they want addressed. There is no prescribed form of words; the totality of communications is assessed (Chief Executive of Manukau Institute of Technology v Zivaljevic [2019] NZEmpC 132). Although a grievance for unjustified dismissal generally cannot be raised before the notice period expires (Poverty Bay Electrical Power Board v Atkinson [1992]; Gibson v GFW Agri-Products Ltd [1994]), the Employment Court in Dunn v Waitemata District Health Board [2013] NZEmpC 246 and New Zealand Automobile Association Inc v McKay [1996] held that communications during a notice period can suffice where the dismissal is certain and the employer is sufficiently informed. The Authority found that Ms Hopson's emails of 13 and 27 September 2024, taken together, conveyed with sufficient clarity that she was dissatisfied with the fairness of Ulti's process and decision-making, and that Ulti was able to infer the substance of the complaint — as evidenced by Mr Cottle's detailed response of 4 October 2024 addressing the reasons for redundancy and the consultation process. The Authority also noted (citing Baguley v Coutts Cars Ltd [2000] and Healy v Health New Zealand [2026] NZEmpC 98) that even if the pre-termination communications were insufficient on their own, the unjustified action may still be relevant to the ultimate outcome given the close causal and temporal connection to the dismissal. The Authority concluded the personal grievance was validly raised within the 90-day period. The Authority expressly did not determine whether the 2 January 2025 email independently raised a grievance, as its finding rested on the September 2024 emails.
4. The Authority reserved costs. It directed that if the matter proceeds to a substantive investigation meeting following mediation, costs for both the preliminary hearing and the substantive meeting can be considered together at that stage.

The preliminary claim was upheld: Ms Hopson validly raised a personal grievance for unjustified dismissal within the 90-day employee notification period; the parties have been directed to mediation, with a substantive investigation to follow if the matter is not resolved.

REMEDY (if applicable)
None ordered at this stage. The determination is preliminary and interlocutory only. The parties have been directed to mediation pursuant to s 159 of the Employment Relations Act 2000. If the matter is not resolved at mediation, Ms Hopson is to advise the Authority whether she wishes to proceed to a substantive investigation. Costs are reserved and will be considered at any future substantive investigation meeting.

Applicant: Philip Moller (employee, Class 5 Driver)
Respondent: Cardinal Logistics Limited (employer)

Applicant: Lawrence Anderson, advocate (firm not stated)
Respondent: Brendon Furness (firm/role not stated)

Philip Moller was employed as a Class 5 Driver by Cardinal Logistics Limited under an employment agreement signed on 21 July 2014, making him a long-serving employee of approximately 11 years. On 29 May 2025, Cardinal received a text message from a former employee alleging that Mr Moller had been driving a Cardinal truck erratically near Sylvia Park, Auckland, and may have been under the influence of drugs or alcohol. Mr Moller was called in to meet with Operations and Transport Manager Mr Nand and, upon arrival, was asked to undergo a drug and alcohol test, which he refused on the grounds that he had clocked out, was about to commence approved leave, had been given no details of the allegation, and believed Mr Nand had misled him. Despite being warned by Head of People & Culture Ms P that refusal constituted serious misconduct and would result in suspension, Mr Moller maintained his refusal and was suspended without pay from 29 May 2025. Cardinal held two disciplinary meetings on 11 and 12 June 2025, which Mr Moller did not attend on his advocate's advice; Cardinal proceeded to dismiss Mr Moller on 13 June 2025 for serious misconduct. Mr Moller raised a personal grievance for unjustifiable disadvantage (suspension and disciplinary process) on 12 June 2025, later amended on 4 September 2025 to include unjustifiable dismissal.

1. Whether Mr Moller was unjustifiably dismissed by Cardinal, specifically: (a) whether Cardinal had genuine and reasonable grounds to require a drug and alcohol test; and (b) whether Cardinal followed a fair process — (Status: Established)
2. Whether Mr Moller was unjustifiably suspended by Cardinal — (Status: Established)
3. Whether Mr Moller contributed to the circumstances leading to his dismissal under s 124 of the Employment Relations Act 2000, and if so, to what extent remedies should be reduced — (Status: Established — 30% reduction applied)
4. Remedy: Lost remuneration for the period between dismissal (13 June 2025) and obtaining new employment (13 September 2025) — (Status: Established)
5. Remedy: Compensation for humiliation, loss of dignity and injury to feelings under s 123(1)(c)(i) of the Act arising from unjustifiable dismissal — (Status: Established, subject to 30% contribution reduction)
6. Remedy: Compensation for wages lost during the suspension period arising from the unjustifiable suspension — (Status: Established)
7. Separate compensation award for the unjustifiable suspension (in addition to dismissal compensation) — (Status: Dismissed)
8. Costs — (Status: Reserved/Not yet determined)
9. Filing fee — (Status: Established)

1. **Unjustifiable dismissal — genuine and reasonable grounds and fair process**
2. The test of justification under s 103A of the Employment Relations Act 2000 requires the Authority to assess, on an objective basis, whether Cardinal's actions and how it acted were what a fair and reasonable employer could have done in all the circumstances. On substantive grounds, the Authority found that Cardinal had not taken reasonable steps to verify that Mr Moller was in fact the driver in the Sylvia Park area before requiring him to take a drug test: Mr Nand had access to truck schedules and GPS/ERoad tracking data over a two-hour window but did not check them. Mr Moller had in fact been on Auckland's North Shore that day. Additionally, Cardinal failed to provide Mr Moller with the details of the complaint (including the location) when he requested them, which denied him the opportunity to refute it — contrary to the procedural fair notice principle established in Ministry of Development v Travers-Jones [2003] 1 ERNZ 174. Procedurally, while Cardinal gave Mr Moller a full opportunity to reconsider and attend disciplinary meetings, this did not remedy the prior procedural and substantive failures. The Authority determined the dismissal was unjustifiable.
3. **Unjustifiable suspension**
4. Cardinal's Drug and Alcohol Policy (clause 3.2) entitled it to suspend an employee for serious misconduct, including refusing a drug and alcohol test without reasonable grounds. However, the Authority had already found that Cardinal lacked genuine and reasonable grounds to require the drug and alcohol test in the first place, meaning Mr Moller's refusal to take it was not unreasonable in the circumstances. Accordingly, the suspension — which flowed from that ungrounded request — was also unjustifiable. No separate authority beyond the findings on Issue 1 was cited; the conclusion followed directly from the substantive finding on the test request.
5. **Contribution under s 124 of the Act**
6. Section 124 of the Act requires the Authority to consider whether the employee contributed to the situation that gave rise to their dismissal, and to reduce remedies accordingly. The Authority found several factors indicating Mr Moller's contribution: he was a long-serving employee who was aware of Cardinal's drug and alcohol policies and the serious misconduct consequences of refusal; he persisted in his refusal even after Ms P fully explained the consequences; he declined to attend either disciplinary meeting on his advocate's advice; and he failed to provide any feedback during the disciplinary process, despite being given adequate opportunity. The Authority noted that, had Mr Moller engaged with the process, dismissal might not have eventuated — given Cardinal's apparent willingness to retain him — and that his non-engagement was inconsistent with the good faith obligation to be "active and constructive" in maintaining a productive employment relationship under the Act. A 30% reduction was applied to the compensation award.
7. **Lost remuneration**
8. Mr Moller was dismissed on 13 June 2025 and secured new employment on 13 September 2025, a period of 13 weeks. The Authority ordered Cardinal to pay 13 weeks of lost remuneration, less any amounts earned during that period. The precise dollar amount was not calculated in the determination; the parties were directed to calculate it themselves, with leave to revert to the Authority if they could not agree.
9. **Compensation for humiliation, loss of dignity and injury to feelings (dismissal)**
10. Under s 123(1)(c)(i) of the Act, the Authority may award compensation for humiliation, loss of dignity and injury to feelings. Mr Moller gave evidence of financial hardship (debt, inability to pay body corporate fees and council rates, need to borrow money), loss of confidence and reputational harm as a driver, and the loss of annual leave time to spend with his son. The Authority accepted this evidence and, having regard to the range of awards in comparable cases, determined $17,000 to be an appropriate award, which was then reduced by 30% for contribution (resulting in a net payment of $11,900). No additional authority beyond s 123 was cited for quantum.
11. **Wages lost during suspension**
12. The Authority found the suspension was unjustifiable and therefore ordered Cardinal to reimburse Mr Moller for any wages lost as a result of the suspension period (from 29 May 2025 to 13 June 2025, the date of dismissal). As with lost remuneration, the precise amount was not specified; the parties were directed to calculate it, with leave to revert if needed.
13. **Separate compensation award for unjustifiable suspension**
14. The Authority declined to make a separate compensation award for the unjustifiable suspension beyond the wages reimbursement ordered. It reasoned that the suspension was the natural consequence of Cardinal's mistaken belief that it had genuine and reasonable grounds to require the test, and formed part of the same chain of events leading to the unjustifiable dismissal, for which compensation had already been awarded. No further compensation was considered appropriate.
15. **Costs**
16. Costs were reserved. The parties were encouraged to resolve costs between themselves. If not resolved, Mr Moller may lodge a costs memorandum within 14 days of the determination, and Cardinal has 14 days from service to reply. The Authority indicated it would apply its usual notional daily rate unless particular circumstances warranted adjustment.
17. **Filing fee**
18. The Authority ordered Cardinal to pay Mr Moller's filing fee of $71.56. (Note: the determination contains a typographical error at paragraph 112, referring to "PNZ" paying "Mr Wilkins" filing fee, but the context and the Orders section make clear this refers to Cardinal paying Mr Moller's filing fee.)

The claims were upheld in full on liability — Mr Moller was found to have been unjustifiably dismissed and unjustifiably suspended — with remedies awarded subject to a 30% reduction for contribution.

- **Lost remuneration:** 13 weeks' wages (less any amounts earned during that period); quantum to be agreed by parties or referred back to the Authority.
- **Compensation for humiliation, loss of dignity and injury to feelings (unjustifiable dismissal):** $17,000.00 under s 123(1)(c)(i) of the Act, reduced by 30% for contribution = **$11,900.00 net payable**.
- **Wage reimbursement for suspension period:** Wages lost during the suspension (29 May 2025 to 13 June 2025); quantum to be agreed by parties or referred back to the Authority.
- **Separate compensation for unjustifiable suspension:** None ordered (subsumed within dismissal compensation).
- **Filing fee:** $71.56 payable by Cardinal to Mr Moller.
- **All monetary orders:** Payable within 28 days of the date of the determination.
- **Costs:** Reserved; subject to separate memorandum process.
- **Reinstatement:** Not sought or ordered.

Applicant: Anna Murgatroyd (employee/former education specialist)
Respondent: Xero (NZ) Limited (employer)

Applicant: Michelle Clark, counsel for the Applicant
Respondent: Emma Butcher, counsel for the Respondent

Anna Murgatroyd was employed as an education specialist by Xero (NZ) Limited from 15 November 2021 until her employment was terminated by redundancy on 6 December 2024. From June to August 2024, Ms Murgatroyd participated in a national roadshow, after which her manager Jessica Ruffino raised performance concerns about her with General Manager Vikki Bean. In September 2024, Ms Murgatroyd separately raised concerns with Ms Bean about Ms Ruffino's management style, including being excluded from the Australian roadshow. On 29 October 2024, Xero announced a restructure of the education team that proposed reducing four education specialist roles to two; Ms Murgatroyd did not submit feedback by the 7 November 2024 deadline, relying on what she understood to be an assurance from Ms Bean that her job was safe. During a Miro workshop on 21 November 2024, Ms Murgatroyd discovered a Miro board created by Ms Bean in July 2024 that named her in a box colour-coded "propose to disestablish," leading her to assert her redundancy had been predetermined. Ms Murgatroyd claimed unjustified dismissal (including predetermination and procedural unfairness) and unjustified disadvantage (including failure to investigate her complaint about Ms Ruffino and a misrepresentation that her job was safe).

1. Was Ms Murgatroyd's redundancy predetermined, making her dismissal a sham? (Dismissed)
2. Did Xero fail to properly assist Ms Murgatroyd in finding alternative/redeployment roles, in breach of s 4 of the Employment Relations Act 2000? (Established)
3. Was Ms Murgatroyd unjustifiably dismissed on procedural grounds — specifically, was she given access to information relevant to the continuation of her employment and an opportunity to comment before the decision was made, as required by s 4(1A) of the Act? (Established)
4. Was the suggestion to Ms Murgatroyd in October 2024 to apply for a secondment role made because she had already been chosen for redundancy? (Dismissed)
5. Did Ms Bean represent at the 31 October 2024 meeting that the new structure would not lead to any redundancies/that Ms Murgatroyd's job was safe? (Dismissed)
6. Does the Miro board establish that Ms Murgatroyd's redundancy was predetermined? (Dismissed)
7. Was Ms Murgatroyd unjustifiably disadvantaged — specifically, did Xero/Ms Bean fail to properly investigate her complaint about Ms Ruffino? (Dismissed)
8. Should Ms Murgatroyd's compensation be reduced for contributing to her own grievance under s 124 of the Act? (Established — 20% reduction applied)
9. Is Ms Murgatroyd entitled to payment of unvested shares as a remedy? (Dismissed)
10. What remedies (lost wages and compensation under ss 123(1)(b) and 123(1)(c)(i)) are appropriate? (Partially established)
11. Costs — should costs be awarded and, if so, at what level? (Reserved/deferred)

1. **Predetermination of redundancy (general):** The test under s 103A of the Act is whether the employer's actions and conduct were what a fair and reasonable employer could have done in all the circumstances. Ms Murgatroyd argued that Ms Bean had selected her for redundancy as early as July 2024 based on the Miro board. The Authority found that the final restructure did not substantially match the July 2024 Miro board, and the differences between where Ms Bean's thinking began and where it ended supported her evidence that she had moved on from the initial board. The predetermination claim was dismissed.
2. **Failure to assist with redeployment (s 4 obligations):** The Authority applied the principle from *Jinkinson v Oceania Gold (NZ) Ltd* [2010] NZEmpC 102 (employer should offer alternative employment where possible) and s 4 good faith obligations as confirmed in *New Zealand Steel Ltd v Haddad* (2023) 19 NZELR 620. While the restructure proposal included a hyperlink for expressions of interest, the Authority found a paucity of evidence that Xero actively met its s 4 obligations, and that an employer of Xero's size could reasonably have been expected to do more. This failure contributed to the global compensation award.
3. **Procedural unjustified dismissal (s 4(1A) — access to information and opportunity to comment):** Section 4(1A) requires an employer proposing a decision likely to adversely affect employment to provide the affected employee with access to relevant information and an opportunity to comment. The Authority found that Ms Ruffino, who had previously raised performance concerns about Ms Murgatroyd, sat on the selection panel. Neither of the other two panel members knew of Ms Murgatroyd's complaint about Ms Ruffino. The Authority found it would have been fair and reasonable to provide Ms Murgatroyd with Ms Ruffino's performance comments so she could respond, which would have mitigated any unconscious bias. The dismissal was found to be procedurally unjustified, though substantively correct.
4. **Secondment suggestion as evidence of predetermination:** Ms Ruffino gave evidence under summons that when she raised the secondment opportunity with Ms Murgatroyd, she was unaware of the restructure proposal and had no recollection of Ms Bean being involved. The Authority accepted this evidence and dismissed the assertion that the secondment suggestion was a device to distract Ms Murgatroyd while she was already marked for redundancy.
5. **Alleged representation that job was safe (31 October 2024 meeting):** Ms Murgatroyd and her partner asserted that Ms Bean said Ms Murgatroyd's job was safe and that the issue with Ms Ruffino would be dealt with. Ms Bean denied this. The Authority preferred Ms Bean's evidence, noting the alleged statement was incompatible with the explicit restructure proposal (which named Ms Murgatroyd's role as potentially disestablished) and inconsistent with Ms Bean's written communication style. This issue was dismissed.
6. **Miro board as evidence of predetermination:** The Authority examined the Miro board in detail, noting it comprised three diagrams including one labelled "Option" where Ms Murgatroyd's name appeared in a box marked "propose to disestablish." Ms Bean denied creating the "Option" box, and the relevant audit logs from July 2024 were no longer available (Miro retains data for 180 days; Xero only requested logs in May 2025, so the earliest retrievable logs were from 8 November 2024). Without the audit logs, it could not be conclusively established that Ms Bean created the "Option" box. Further, the differences between the Miro board and the final restructure outcome were sufficient to rebut any inference of predetermination. This issue was dismissed.
7. **Unjustified disadvantage — failure to investigate complaint about Ms Ruffino:** Ms Murgatroyd argued Ms Bean failed to properly investigate her complaint about Ms Ruffino's management behaviour. The Authority found that Ms Bean's conduct — including following up with Ms Murgatroyd on 17 October 2024 to ask how she wished to proceed — was consistent with waiting for Ms Murgatroyd's direction before taking action, and consistent with Xero's graduated complaint process of resolving matters informally first. The Authority found that Ms Bean had taken Ms Murgatroyd's concerns seriously, and that the formal complaint was only made on 24 October 2024. A facilitated meeting was agreed to but was derailed by the subsequent restructure announcement. The disadvantage claim was dismissed.
8. **Contributory conduct (s 124 reduction):** Section 124 of the Act requires the Authority to consider whether an employee contributed to the situation giving rise to the grievance. The Authority found that Ms Murgatroyd contributed to the procedural deficiency by not engaging with the restructure process — specifically, by not alerting the other panel members that two of its members (Ms Bean and Ms Ruffino) were aware of her complaint about her manager. A reasonable person would have been more communicative. The Authority reduced the compensation award by 20%.
9. **Unvested shares:** Ms Murgatroyd sought payment of unvested shares as part of her remedy. The Authority dismissed this claim, noting that Ms Murgatroyd's individual employment agreement (clause 9.3) provided that unvested shares are a matter of absolute discretion for Xero.
10. **Remedies — lost wages and compensation:** The Authority applied the principle from *Waitakere City Council v Ioane* [2004] 2 ERNZ 294 (CA) that where a consultation process is flawed but the substantive outcome is justified, lost remuneration should be limited to the time needed to complete the process properly. The Authority determined two weeks was sufficient additional time for proper consultation. Ms Murgatroyd was awarded two weeks' lost remuneration under s 123(1)(b). Compensation under s 123(1)(c)(i) for humiliation, loss of dignity and injury to feelings (set globally to include Xero's redeployment shortcoming) was fixed at $20,000 before a 20% reduction for contributory conduct, resulting in a final award of $16,000.
11. **Costs:** Costs were reserved. The parties were encouraged to resolve costs between themselves. The Authority indicated a preliminary view that 1.25 times the notional tariff for the first day of an investigation meeting may apply as a starting point. If unresolved, Ms Murgatroyd may file a costs memorandum within 21 days, with Xero having 14 days to reply.

The unjustified dismissal claim was partially upheld on procedural grounds (predetermination and disadvantage claims dismissed); Ms Murgatroyd was awarded lost remuneration and reduced compensation, with the costs issue reserved.

- Lost remuneration: Two weeks' salary under s 123(1)(b) of the Act (exact dollar amount not specified; to be calculated from Ms Murgatroyd's salary)
- Compensation: $16,000 under s 123(1)(c)(i) of the Act (being $20

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Applicant: Janice Connor (employee)
Respondent: Mount Albert Grammar School Board of Trustees (employer)

Applicant: Erika Whittome and Liz Lambert, advocates (firm not stated)
Respondent: Paul Robertson, counsel (firm not stated)

Janice Connor was employed by the Mount Albert Grammar School Board of Trustees as a Careers Administrator from 31 January 2018. Following government amendments to the Covid-19 Public Health Response (Vaccinations) Order 2021, education sector employees were required to be vaccinated against Covid-19. Ms Connor was not vaccinated and did not hold a valid exemption (her GP-issued exemption became invalid when the rules changed to require Director-General of Health exemptions only); she worked from home from mid-November 2021 and was given four weeks' notice of termination on 11 January 2022, with her last day being 14 January 2022. Ms Connor's amended statement of problem, lodged 1 September 2025 (approximately three years after dismissal), alleged unjustified disadvantage and — in submissions only — unjustified dismissal, and claimed that various written communications with the Board between October 2021 and January 2022 constituted raising a personal grievance within the statutory 90-day window. The Board denied any personal grievance had been validly raised within 90 days, did not consent to late raising, and argued the Authority therefore lacked jurisdiction; the Board also contended that its actions were in any event mandated by government legislation rather than the Board's own initiative.

1. Whether Ms Connor raised a personal grievance for unjustified disadvantage within the statutory 90-day timeframe under s 114 of the Employment Relations Act 2000 — (Partially established)
2. Whether the Board's compliance with the Vaccination Order can constitute unjustified action capable of founding a personal grievance — (Dismissed)
3. Whether the 4 November 2021 submission of a GP-issued vaccination exemption raised a personal grievance — (Dismissed)
4. Whether the 5 November 2021 email asking if the exemption was accepted raised a personal grievance — (Dismissed)
5. Whether the 11 November 2021 email from Mr Drumm to Ms Connor is evidence of Ms Connor raising a personal grievance — (Dismissed)
6. Whether the 14 November 2021 email from Ms Connor about working from home raised a personal grievance — (Dismissed)
7. Whether the 23 November 2021 email from Ms Connor's manager to Mr Drumm raised or evidenced a personal grievance — (Dismissed)
8. Whether the 1 December 2021 email from Ms Connor to her line manager (about stress and lack of support) raised a personal grievance — (Dismissed)
9. Whether the 1 December 2021 "Notice" letter couriered to the Board raised a personal grievance — (Dismissed)
10. Whether the 8 December 2021 email advising Ms Connor was seeking medical and legal advice raised a personal grievance — (Dismissed)
11. Whether the 10 January 2022 email from Ms Connor raised a personal grievance for unjustified disadvantage — (Established)
12. Whether the totality of Ms Connor's communications constituted the raising of a personal grievance — (Partially established — limited to the finding at issue 11)
13. Whether Ms Connor raised a personal grievance for unjustified dismissal within the statutory 90-day timeframe — (Dismissed)
14. Whether the 9 February 2022 tort claim letter raised a personal grievance for unjustified disadvantage or unjustified dismissal — (Dismissed)
15. Whether costs should be awarded to either party — (Not reached)

1. The Authority applied s 114 of the Employment Relations Act 2000, which requires a personal grievance to be raised within 90 days from when the action occurred or came to the employee's notice. The 90-day period was held to commence on 25 October 2021 (when Ms Connor first became aware of the vaccination requirement), expiring on 23 January 2022. The Authority found, through analysis of each communication, that the 10 January 2022 email did raise an unjustified disadvantage grievance in time. The claim was therefore partially established in respect of that single communication.
2. The Authority applied ss 103 and 114 of the Act and noted that the Vaccination Order was government-mandated, not a Board initiative. Citing its own prior determinations in *Pretorius v Board of Trustees of Taupo Intermediate School* [2022] NZERA 664 and *Bastion v Cashmere Primary Te Pae Kereru School Board* [2025] NZERA 841, the Authority held it lacked jurisdiction to find the Board's actions unjustified where the Board was merely complying with the Vaccination Order. The Authority also noted the High Court and Court of Appeal had upheld the lawfulness of the Vaccination Order (*NZDSOS Inc v Minister for Covid-19 Response* [2022] NZHC 716; [2022] NZCA 74). Accordingly, most of Ms Connor's complaints about the vaccination requirement could not found a valid personal grievance against the Board.
3. The Authority applied the test from *Chief Executive of Manukau Institute of Technology v Zivaljevic* [2019] NZEmpC 132, requiring that the communication convey the substance of the complaint sufficiently for the employer to address it. Submitting an exemption certificate was not a complaint about an employment disadvantage but rather an attempt to obtain an accommodation; it did not communicate a personal grievance to the employer and therefore did not satisfy s 114(2) of the Act.
4. Applying *Zivaljevic* and *Creedy v Commissioner of Police* [2006] ERNZ 517, the Authority found that asking whether an exemption was accepted was not evidence of raising a grievance — an employer must know what it is being asked to address. The Board accepted the submission that such a question fell short of the statutory requirement.
5. The Authority found that Mr Drumm's 11 November 2021 email was correspondence from the employer to the employee, not evidence of Ms Connor raising a personal grievance. Ms Connor's characterisation — that the employer "knew" the exemption was a disadvantage — did not satisfy the requirement under s 103(1)(b) that the employee's employment or conditions be affected to her disadvantage by unjustifiable employer action.
6. The Authority found that Ms Connor's 14 November 2021 email confirming a working-from-home arrangement proposed no grievance and sought no remedy for any unjustified action — the proposal was accepted by the employer, and the email was therefore not evidence that a grievance had been raised or acknowledged.
7. The Authority accepted the Board's submission that Ms Connor's own affidavit confirmed she "wanted to raise concerns but was unsure of the process", which was treated as an admission that no concern had in fact been raised. The manager's email confirming working-from-home arrangements was evidence that the Board supported that arrangement, not that it had accepted a disadvantage grievance.
8. Applying *Shaw v Bay of Plenty District Health Board* [2022] NZCA 241, the Authority found that Ms Connor's 1 December 2021 email to her line manager — which complained of feeling unsupported and losing sleep — was more akin to general workplace criticism than a personal grievance. Furthermore, because the email was sent to a line manager and not communicated up to the principal or referred to in later correspondence, it was insufficient to give the employer notice of a grievance. The underlying cause of any stress (the Vaccination Order) was also not attributable to the Board.
9. The Authority applied *Creedy* and found the 1 December 2021 "Notice" letter — which referenced English common law, threatened criminal sanctions, and appeared to be adapted from a "sovereign citizen" template — was incomprehensible as an employment grievance and could not enable the employer to understand what it was required to address. It therefore did not comply with s 114(2) of the Act.
10. The Authority found that advising an employer that legal and medical advice is being sought is not the substance of a grievance and gives the employer nothing it can address. Ms Connor's 8 December 2021 email therefore did not meet the requirements of s 114 of the Act.
11. Applying *Zivaljevic*, the Authority examined Ms Connor's 10 January 2022 email as a whole and was satisfied that it conveyed, with sufficient specificity, a complaint that the Board had failed to respond to her proposal to continue working from home. The email expressed dissatisfaction with the Board's handling of the impact of her vaccination status on her employment, identified the failure to acknowledge or respond to her home-working proposal, and sought the Board's direct response — giving the Board sufficient information to address the grievance. This fell within the 90-day window (25 October 2021 to 23 January 2022). No assessment of the merits of the grievance was made at this preliminary stage.
12. The Authority applied the principle from *Zivaljevic* that the totality of communications may constitute the raising of a grievance. Having examined all communications cumulatively, the Authority found no additional personal grievance was raised beyond what was identified in the 10 January 2022 email.
13. The Authority applied the principle from *Underhill v Coca-Cola Amatil Ltd* [2017] NZEmpC 117 that an unjustified dismissal grievance cannot be raised before the dismissal or notice of dismissal has occurred. As all communications relied on predated the 11 January 2022 notice of termination, they could not constitute the raising of an unjustified dismissal grievance. The Authority declined to follow the ERA's own decision in *Pike v Nelmac* [2024] NZERA 461 (which Ms Connor relied upon), noting it was not binding and that Ms Connor's situation was not analogous — she had not told the Board that any future dismissal would be unjustified. Ms Connor's silence in her affidavit on any unjustified dismissal claim further undermined the contention.
14. The Authority found that a tort claim for damages ($25 million) communicated on 9 February 2022 — after employment had ended — was not evidence of raising a personal grievance for either unjustified disadvantage or unjustified dismiss

Applicant: Shaoqiang Chen (employee)
Respondent: Wen Hui Lin (employer)

Applicant: David Kim, advocate (firm not stated)
Respondent: No appearance

Shaoqiang Chen responded to an advertisement for a part-time cook position at "Beached As Takeaways" in Flat Bush, Auckland, and was engaged by Wen Hui Lin following an interview and practical assessment on 27 November 2024. Mr Chen commenced work on 10 December 2024, working six days per week (Tuesday to Sunday) for agreed cash pay of $1,200 per week, with no written employment agreement provided and no PAYE deducted or remitted. Mr Lin dismissed Mr Chen on 24 January 2025 by informing him that he had hired someone else and that the supervisor thought Mr Chen was too slow; Mr Chen's last day of work was 9 February 2025. Mr Chen raised a personal grievance claiming unjustified dismissal, multiple unjustified disadvantages (including bullying by his supervisor, failures to pay statutory entitlements, no written employment agreement, and failure to account for PAYE), and sought arrears of holiday pay and penalties. Mr Lin did not participate in the proceedings after an early case management conference on 15 September 2025, though a letter dated 21 February 2025 from a representative of Mr Lin's company MH Beached AZ Limited was in evidence and treated as broadly reflecting Mr Lin's position.

1. Who was Mr Chen's employer — Mr Lin personally or MH Beached AZ Limited? (Established: Mr Lin personally)
2. Did Mr Chen have a personal grievance for unjustified dismissal? (Established)
3. Did Mr Chen have a personal grievance for unjustified disadvantage — failure to provide a written employment agreement? (Established, but no separate remedy awarded)
4. Did Mr Chen have a personal grievance for unjustified disadvantage — bullying behaviour by his supervisor? (Dismissed)
5. Did Mr Chen have a personal grievance for unjustified disadvantage — Mr Lin's failure to properly deal with Mr Chen's bullying complaint? (Dismissed)
6. Did Mr Chen have a personal grievance for unjustified disadvantage — failure to pay public holiday entitlements? (Established, but no separate remedy awarded)
7. Did Mr Chen have a personal grievance for unjustified disadvantage — cancellation of shifts without written notice? (Dismissed/Not pursued)
8. Did Mr Chen have a personal grievance for unjustified disadvantage — failure to pay PAYE on Mr Chen's behalf? (Established, but no separate remedy awarded)
9. Did Mr Chen have a personal grievance for unjustified disadvantage — failure to pay annual holiday entitlements? (Established, but no separate remedy awarded)
10. What remedies, if any, should be awarded for the established personal grievance(s), including compensation and lost wages? (Partially established)
11. Should remedies be reduced for Mr Chen's contribution under s 124 of the Employment Relations Act 2000? (Dismissed)
12. Is Mr Chen owed arrears of public holiday pay (including penal rates and alternative holidays)? (Established)
13. Is Mr Chen owed arrears of annual holiday pay? (Established)
14. Is Mr Chen owed arrears of ordinary wages due to underpayment below the minimum wage (breach of the Minimum Wage Act 1983)? (Established — identified by the Authority, not specifically pleaded)
15. Should penalties be imposed on Mr Lin for: (a) failure to pay minimum wage; (b) failure to pay public holiday and annual holiday entitlements; (c) failure to provide a written employment agreement; and (d) breach of good faith? (Partially established — determination truncated before final penalty figure stated)
16. Should either party contribute to the costs of representation of the other party? (Not resolved — determination truncated)

1. **Employer identity**
2. The Authority applied the framework from *Pilgrim v Attorney-General (No 2)* [2023] NZEmpC 277, which requires an objective, intensely factual assessment of who, on the balance of probabilities, the employer really was. The Authority found that all of Mr Chen's employment interactions — the interview, the job offer, payment in cash, receiving complaints, and dismissal — were conducted by Mr Lin personally. Mr Chen was unaware of MH Beached until after employment ended. The 21 February letter confirmed the arrangement was personal to Mr Lin and differed from MH Beached's standard practices. Mr Lin was determined to be the employer on a permanent, full-time basis.
3. **Unjustified dismissal**
4. The test under s 103A of the Employment Relations Act 2000 asks whether the employer's actions and manner of acting were what a fair and reasonable employer could have done in all the circumstances. Mr Lin dismissed Mr Chen on 24 January 2025 without warning, without raising prior concerns about performance, without any investigation, and without giving Mr Chen an opportunity to respond. The reasons given (a new hire had been found; the supervisor found Mr Chen too slow) had never been put to Mr Chen. The Authority found the dismissal was both procedurally flawed and substantively unjustified, and that the employment was not a short-term or temporary arrangement.
5. **Unjustified disadvantage — no written employment agreement**
6. The Authority applied *O'Boyle v McCue* [2020] NZEmpC 175, which held that a fair and reasonable employer would comply with the statutory obligation to provide a written employment agreement and that failure to do so can contribute to employment relationship problems. The failure left Mr Chen without clarity as to his terms and entitlements. This disadvantage was established but, given its close connection to the overall circumstances of the employment and dismissal, no separate remedy was ordered; it was taken into account in assessing the unjustified dismissal remedy.
7. **Unjustified disadvantage — bullying by supervisor**
8. The Authority adopted the WorkSafe New Zealand definition of bullying as repeated and unreasonable behaviour directed at an employee that creates a risk to health and safety. Mr Chen described four specific incidents (customer complaint blame; snapper defrost blame; photograph during rest break; overcooked chicken confrontation) and a general pattern of antagonism. The Authority found the incidents were described at a high level without sufficient detail as to frequency, duration or cumulative effect, and that they were more consistent with occasional workplace tension and interpersonal conflict than with repeated and unreasonable behaviour. The bullying grievance was dismissed.
9. **Unjustified disadvantage — failure to deal with bullying complaint**
10. Because the Authority found bullying was not established, no separate disadvantage grievance arose from Mr Lin's handling of the complaint. Additionally, the complaint was not raised with Mr Lin until 31 January 2025, shortly before Mr Chen's employment ended, leaving limited opportunity for a meaningful response. This grievance was dismissed.
11. **Unjustified disadvantage — failure to pay public holiday entitlements**
12. The Authority confirmed that failing to meet statutory minimum obligations, including public holiday pay, constituted a disadvantage in the employment relationship, consistent with the principles in *O'Boyle v McCue*. This disadvantage was established. However, as with the written employment agreement failure, no separate remedy was ordered; it was factored into the unjustified dismissal remedies and addressed through arrears orders.
13. **Unjustified disadvantage — cancellation of shifts**
14. Mr Chen did not pursue this claim at the investigation meeting. The Authority found it more likely that the five days in question represented annual holiday pay rather than cancelled shifts — something Mr Chen ultimately agreed with. No finding of disadvantage was made.
15. **Unjustified disadvantage — failure to pay PAYE**
16. The Authority held that failure to account for PAYE constituted a disadvantage because it exposed Mr Chen to legal risk regarding his tax obligations, consistent with the broader principle that failures to meet statutory obligations amount to disadvantages. This disadvantage was established but no separate remedy was ordered; it was considered as part of the overall remedies assessment. The Authority noted that Mr Chen should now pay appropriate tax on his gross earnings of $16,236.90.
17. **Unjustified disadvantage — failure to pay annual holiday entitlements**
18. Established on the same basis as the public holiday and PAYE failures. Mr Lin failed to pay the correct amount of annual holiday pay. No separate remedy was ordered beyond the arrears calculation, which was factored into the overall remedies.
19. **Remedies — compensation and lost wages**
20. For lost wages, the Authority applied the statutory obligation under s 123(1)(b) to award the lesser of actual lost remuneration or three months' ordinary pay, citing *Pyne v Invacare New Zealand Ltd* [2023] NZEmpC 179 and *Pedersen v Super Vape Store Ltd* [2026] NZERA 108. Mr Chen obtained part-time work from 21 February 2025 but the Authority found his mitigation efforts dropped off from March 2025 (citing *Argosy Imports Ltd v Lineham* [1998] 3 ERNZ 976), breaking the causal chain, and awarded four weeks' ordinary wages ($5,833.80). For hurt and humiliation under s 123(1)(c)(i), the Authority assessed the impact as being toward the lower end, noting the abrupt dismissal and poor employment conditions caused upset and uncertainty, but that Mr Chen's evidence suggested he treated workplace incidents as "water off a duck's back" (*Richora Group Ltd v Cheng* [2018] NZEmpC 113). An award of $8,000 was made, consistent with comparable cases (*Wong v NZAT Construction Ltd* [2026] NZERA 193; *Kumar v IPG Corporation Ltd* [2025] NZERA 760; *Feng v Yoga Ltd* [2025] NZERA 709).
21. **Contribution under s 124**
22. The Authority applied the two-step test requiring (a) that the employee's actions contributed to the situation giving rise to the grievance, and (b) that a reduction in remedies is warranted (*Keighran v Kensington Tavern Ltd* [2024] NZEmpC 28; *Salt v Fell* [2008] NZCA 128). The Authority found no evidence that Mr Chen contributed in any blameworthy way to the circumstances giving rise to his dismissal, and no reduction was made.
23. **Arrears of public holiday pay (including penal rates and alternative holidays)**
24. Under s 56 of the Holidays Act 2003, Mr Chen was entitled to time-and-a-half pay for working

Applicant: Sasha Lee (employee)
Respondent: JNJ Management Limited (First Respondent, employer) and National Holdings Limited (Second Respondent, related company)

Applicant: Kara Orviss, advocate for the Applicant
Respondent: Tony Sung, counsel for the Respondent

Sasha Lee was employed by JNJ Management Limited (JNJ) as a personal assistant to James Kwak, sole director of the JNJ Group, from 12 November 2018 until her position was made redundant on 19 January 2024. Although her formal job description described a personal assistant role, Ms Lee performed a significantly broader range of duties, including management functions for National Holdings Limited (NHL), a subsidiary of JNJ that operated Metro Lanes Bowling and various hospitality businesses. Ms Lee claimed she was jointly employed by both JNJ and NHL, sought wage arrears for additional hours worked over approximately three and a half years, raised personal grievances for unjustified disadvantage (regarding removal of her duties and an unsafe work environment) and unjustified dismissal, and sought holiday pay entitlements. JNJ disputed the additional hours claimed and the characterisation of the redundancy process, while NHL denied any employment relationship with Ms Lee. The parties were unable to resolve the dispute through prior processes, and an investigation meeting was held on 27 March 2026 in Auckland.

1. Was Ms Lee an employee of NHL (joint employer claim)? — Status: (Dismissed)
2. If Ms Lee was an employee of NHL, did she raise a personal grievance with NHL? — Status: (Not reached)
3. Was Ms Lee unjustifiably disadvantaged by JNJ in respect of the removal of some of her duties (s 103(1)(b) Employment Relations Act 2000 (ERA))? — Status: (Established)
4. Was Ms Lee unjustifiably disadvantaged by JNJ because JNJ did not provide a healthy and safe work environment (implied duty / Health and Safety at Work Act 2015, s 36)? — Status: (Dismissed)
5. Was Ms Lee unjustifiably dismissed by JNJ (s 103A ERA)? — Status: (Established)
6. Does JNJ and/or NHL owe Ms Lee wage arrears for additional hours worked? — Status: (Partially established)
7. Does JNJ and/or NHL owe Ms Lee annual holiday pay? — Status: (Established)
8. Does JNJ and/or NHL owe Ms Lee payment for public holidays worked? — Status: (Dismissed)
9. Is Ms Lee entitled to compensation under s 123(1)(c)(i) ERA for humiliation, loss of dignity and injury to feelings arising from the established personal grievances? — Status: (Established)
10. Should the compensation award be reduced to account for post-employment misconduct by Ms Lee discovered by JNJ? — Status: (Established — reduction applied)
11. Is Ms Lee entitled to reimbursement of lost wages (remuneration) under s 128(2) ERA as a result of the unjustified dismissal? — Status: (Partially established)
12. Should any remedy be reduced under s 124 ERA for blameworthy conduct by Ms Lee contributing to the circumstances giving rise to her grievances? — Status: (Dismissed)
13. Should JNJ's application to offset holiday payments already made to Ms Lee (under s 28 Holidays Act 2003) against the annual holiday pay owed be granted? — Status: (Dismissed)
14. Is either party entitled to an award of costs? — Status: (Conditional — reserved)

1. The Authority applied the test from Rasier Operations BV v E TU Inc [2025] NZSC 162, requiring determination of the real nature of the relationship including all relevant matters and any indication of intention. The Authority examined multiple factors: Ms Lee had a written employment agreement only with JNJ; she was paid solely by JNJ; the "Addendum" purportedly with NHL bore the JNJ logo and referred to JNJ; and critically, in a December 2023 email Ms Lee herself stated she was not employed by NHL. The control and integration factors were given no weight given the overlapping group structure and Mr Kwak's role as sole director across all entities. The joint employer doctrine from E TU v Rasier Operations BV [2022] NZEmpC 192 was distinguished because JNJ, as parent company, assumed all employment obligations. The claim that NHL was a joint employer was dismissed.
2. Because the Authority concluded Ms Lee was not an employee of NHL, it was unnecessary to consider whether she had raised a personal grievance with NHL. This issue was not reached.
3. The Authority applied s 103(1)(b) ERA, which requires a finding that the employee's employment or a condition of it was affected to her disadvantage by unjustifiable employer action. JNJ announced, without prior consultation, that key aspects of Ms Lee's role — NHL management duties and the human resources function — would be permanently transferred to others. The Authority found these were significant parts of Ms Lee's role, that no consultation occurred in breach of s 4(4)(ba) ERA, and that the announcement came as a shock causing considerable stress. The personal grievance for unjustified disadvantage in respect of removal of duties was established.
4. The Authority found that JNJ owed an implied duty to provide a healthy and safe work environment, informed by s 36 of the Health and Safety at Work Act 2015, relying on Robinson v Pacific Seals New Zealand Ltd [2014] NZEmpC 99. The focus was on what steps JNJ took after the incident of 30 November 2023, when Ms Jeon allegedly shouted at Ms Lee. On the balance of probabilities, Mr Kwak was not present during the incident. Critically, Ms Lee took sick leave immediately after the incident and did not return to work, which severely limited what JNJ could do by way of response. The Authority found JNJ's limited response did not amount to an unjustified disadvantage in the circumstances. This claim was dismissed.
5. The Authority applied s 103A(2) ERA — whether the employer's actions and how it acted were what a fair and reasonable employer could have done in all the circumstances — guided by Grace Team Accounting Limited v Brake [2014] NZCA 541. The Authority found the dismissal unjustified for several cumulative reasons: JNJ did not pause the restructuring while Ms Lee was on sick leave; key aspects of her role had already been removed two weeks before consultation began, indicating predetermination; the consultation documents failed to explain the business rationale for redundancy, the financial savings sought, or alternatives to redundancy; and JNJ provided no financial information to substantiate the stated "500% profit decrease." The dismissal was found to be unjustified.
6. The Authority interpreted clauses 4.1.2 and 5.1 of the Second IEA together objectively (applying Supercity Towing Ltd v Huch [2023] NZEmpC 205). It concluded that while the salary covered normal hours, clause 4.1.2 entitled Ms Lee to additional payment for extra hours worked on a reasonable and mutually agreed basis. The Authority found mutual agreement was established by implication — Mr Kwak knew Ms Lee was working additional hours given their close working relationship and did not object. Because JNJ failed to comply with s 130(1)(g) ERA by not maintaining wages and time records, the Authority applied the discretion under s 132(2) ERA (Rainbow Falls Organic Farm Limited v Rockell [2014] NZEmpC 136) but did not accept all hours claimed. After assessing the business diaries, spreadsheets, check-in/out records, the COVID-19 period, and Mr Kwak's evidence, the Authority found 2,101 hours proven (rather than the 2,873 claimed), resulting in wage arrears of $105,342.25 (gross) payable by JNJ. NHL was not liable as Ms Lee was not its employee.
7. JNJ did not dispute that 378 hours (9.45 weeks) of accrued annual leave was owed. The dispute was about the applicable average weekly earnings figure, which the Authority recalculated to include the additional hours established. The Authority determined average weekly earnings of $2,733.71 for the relevant period, resulting in a total annual holiday pay entitlement of $34,373.75 (gross), comprising $25,844.55 for accrued leave and $8,529.20 for 8% of gross earnings in the final year. This was ordered to be paid by JNJ within 60 days.
8. Ms Lee accepted in submissions that she was unable to establish the hours worked on public holidays and withdrew that part of her claim, though she maintained she had worked some hours on public holidays. The Authority found the claim not established and dismissed it.
9. Under s 123(1)(c)(i) ERA, compensation is assessed based on the nature and extent of harm caused to the employee, not as a punitive measure (Paykel Ltd v Ahlfield [1993] 1 ERNZ 344; Pyne v Invacare New Zealand Limited [2023] NZEmpC 179). For the disadvantage claim, the Authority awarded $8,500, reflecting Ms Lee's humiliation and shock at the sudden, unilateral removal of key duties. For the unjustified dismissal, the Authority awarded $17,000, reflecting significant emotional and mental harm, depression, sleep disturbance, anxiety, poor physical health, and Ms Lee's limited social and family support in New Zealand. Before reduction (see issue 10), the total s 123(1)(c)(i) award was $25,500.
10. Post-employment misconduct discovered by JNJ — that Ms Lee allegedly continued collecting payments from a JNJ tenant while holding herself out as a property manager, with bank statements showing payments totalling approximately $7,560 — was considered under the principles in Salt v Governor of Pitcairn and Associated Islands [2008] NZCA 128 at [83], which permits significant post-employment misconduct to reduce remedies under s 123. Although the matter had been reported to police and no charges had been laid, the Authority found it serious enough that, if known at the time, it could have resulted in dismissal. Applying Evans v Manuka Mountain Limited [2021] NZERA 572 as a comparable, the Authority reduced the total s 123(1)(c)(i) compensation by $8,000, resulting in a final award of $17,500.
11. The Authority considered whether Ms Lee took reasonable steps to mitigate by seeking alternative employment following dismissal (Maddigan v

Applicant: A Labour Inspector (Ministry of Business, Innovation, and Employment)
Respondent 1: Hariom Horticulture Limited (in liquidation) (employer)
Respondent 2: Tarun Gautam (sole director and shareholder of Hariom Horticulture Limited)

Applicant: Martin Denyer, counsel (firm not stated)
Respondent: No appearance

Hariom Horticulture Limited employed five migrant workers on work visas — Jai Shiva, Vinayak Chopra, Raman Shekhar, Jagmeet Singh, and Phoolmeet Kaur — in horticulture work. A Labour Inspector from MBIE investigated the company and identified multiple alleged breaches of minimum employment standards, including failures to keep proper wage, time, holiday and leave records; failures to pay holiday pay on termination; failures to pay minimum wages; and an alleged unlawful premium demanded of Jagmeet Singh. By the time of the investigation, Hariom had been placed into liquidation, and certain claims against the company were withdrawn with the liquidator's consent; claims against Tarun Gautam as a person involved in breaches continued. The respondents filed a statement in reply admitting non-payment of holiday pay on termination and agreeing arrears were owed; they attributed record-keeping failures to employee Phoolmeet Kaur. Mr Gautam failed to appear at the investigation meeting, filed no witness statements, and did not engage with the post-hearing process despite being given extended time to respond.

1. Did Hariom fail to keep accurate wage and time records in breach of s 130 of the Employment Relations Act 2000 (ERA)? — (Established)
2. Did Hariom fail to keep accurate holiday and leave records in breach of s 81 of the Holidays Act 2003? — (Established)
3. Did Hariom fail to calculate and pay annual leave on termination of employment within 12 months under s 23 of the Holidays Act 2003? — (Established)
4. Did Hariom fail to calculate and pay annual leave on termination after 12 months and before 2 years under s 25 of the Holidays Act 2003? — (Established)
5. Did Hariom fail to calculate and pay annual leave on ending of employment under s 27 of the Holidays Act 2003? — (Established)
6. Did Hariom fail to pay at least the minimum wage for all hours worked in breach of s 6 of the Minimum Wage Act 1983? — (Established)
7. Was an unlawful premium of $23,324.00 net required from Jagmeet Singh in breach of s 12(1)/s 12A of the Wages Protection Act 1983? — (Partially established)
8. Was Tarun Gautam a "person involved in a breach of employment standards" under s 142W of the ERA? — (Established)
9. Should penalties be imposed on Tarun Gautam personally under s 142X of the ERA, and if so, in what amount and to whom payable? — (Established)
10. Should the filing fee be reimbursed to the Labour Inspector? — (Established)
11. Costs — (Reserved/Conditional)

1. **Wage and time records (s 130 ERA):** Section 130 requires employers to keep wage and time records including hours worked each day, start and end dates of pay periods, and hourly rates. The Authority found that while Mr Gautam produced some payslips, these consistently omitted daily hours worked, and sometimes omitted pay period dates and hourly rates. Mr Gautam offered conflicting and changing explanations for the missing timesheets (lost in a house move, fell from his ute, or were Ms Kaur's responsibility). The Authority rejected these explanations, noting the statutory obligation rests with the employer, not an employee delegate, and that Mr Gautam's own interview statements contradicted his later excuses. Breach established in respect of all five employees.
2. **Holiday and leave records (s 81 Holidays Act 2003):** Section 81 requires employers to record, among other things, hours worked each day, each employee's sick leave entitlement, dates of termination, and holiday pay paid on termination. The Authority found the records produced failed on all four counts. The respondents offered no explanation for the absence of sick leave records or termination dates, and admitted (by concession in the statement in reply) that holiday pay was simply not paid on termination. The Authority found a breach in respect of all five employees.
3. 3–5. **Annual leave on termination (ss 23, 25, and 27 Holidays Act 2003):** Sections 23 and 25 govern how annual leave is calculated depending on length of service; s 27 requires payment in the final pay. The respondents admitted in their statement in reply that no holiday pay was paid on termination. Payroll reports and payslips confirmed this. Although Ms Kaur later received her holiday pay (three months after termination and only after the investigation commenced), a breach still occurred in respect of her as it was not paid in the final pay. The Authority found breaches in respect of three named employees, with arrears remaining payable to Raman Shekhar ($1,814.56 gross) and Jagmeet Singh ($3,240.00 gross), plus interest.
4. **Minimum wage (s 6 Minimum Wage Act 1983):** Inspector Hall calculated hours worked and wages paid by cross-referencing Hariom's own payroll records and bank statements, only counting periods clearly established by Hariom's own records. Even on that conservative basis, three employees — Raman Shekhar, Jagmeet Singh, and Jai Shiva — were paid less than minimum wage. Jagmeet Singh's own evidence corroborated that he was paid a standard 30 hours per week regardless of actual hours worked. Mr Gautam also admitted to the Inspector that employees were sometimes not paid or paid late at his direction. Arrears remain payable: Mr Shekhar $1,362.00, Mr Singh $2,742.90, and Mr Shiva $4,099.50 (all gross), plus interest.
5. **Unlawful premium (s 12A Wages Protection Act 1983):** Mr Singh gave evidence that he made five payments to Mr Gautam (or accounts connected to him) in India and New Zealand to secure his employment with Hariom. Mr Gautam claimed the payments were repayments of a loan between their fathers, which Mr Singh denied. The Authority preferred Mr Singh's evidence as consistent with the documentary evidence. However, applying *Mehta v Elliott (Labour Inspector)* [2003] 1 ERNZ 451, the Authority held it lacked jurisdiction over payments made in India in Indian currency between Indian parties, even where connected to New Zealand employment. Accordingly, only the single NZ-dollar payment of $11,276.00 made on 30 March 2023 into a New Zealand bank account fell within jurisdiction and was found to be an unlawful premium. The claim for the remaining amounts (~$12,048) was not ordered as those transactions were outside jurisdictional reach.
6. **Person involved in breach — Tarun Gautam (s 142W ERA):** Section 142W requires that, where the employer is a company, the person involved must be an officer (i.e., a director) who aided, abetted, counselled, procured, or was knowingly concerned in the breach. Mr Gautam was the sole director of Hariom, satisfying the officer requirement. The Authority found he was knowingly concerned in the breaches: he admitted non-payment of holiday pay and had taken no steps to remedy this; he personally directed employees' work, collected timesheets, oversaw wage payments, and admitted directing that payments be withheld or delayed for his own convenience. He personally received the unlawful premium from Mr Singh. The Authority was satisfied he met the s 142W threshold.
7. **Penalties against Tarun Gautam (s 142X ERA):** The Authority applied the penalty framework from s 133A ERA and cases including *Borsboom v Preet PVT Ltd* [2016] NZEmpC 143, *A Labour Inspector v Prabh Ltd* [2018] NZEmpC 110, *A Labour Inspector v Daleson Investment Ltd* [2019] NZEmpC 12, and *Nicholson v Ford* [2018] NZEmpC 132. The Authority identified 12 separate breaches (5 record-keeping, 3 holiday pay on termination, 3 minimum wage, 1 unlawful premium) across four statutes, giving a maximum penalty of $120,000 (at $10,000 per breach for an individual under s 135 ERA). Applying a 60% assessment rate for record-keeping breaches (consistent with prior case law) reduced the total to $72,000. A further discount of approximately 50% was applied reflecting that Mr Gautam is a single owner-operator and Hariom has been liquidated, arriving at $40,000. Aggravating factors included: the systemic and apparently deliberate nature of breaches; vulnerability of migrant workers on tied visas; Mr Gautam's personal involvement including personally receiving the unlawful premium; prior similar proceedings against the respondents; and Hariom's GRASP and GAP certifications demonstrating knowledge of employment standards. The $40,000 penalty was apportioned: $5,000 each to Jai Shiva, Vinayak Chopra, Raman Shekhar, and Phoolmeet Kaur; $10,000 to Jagmeet Singh (including an additional $5,000 recognising the unlawful premium); and the remaining $10,000 to the Crown account (together with the filing fee reimbursement of $71.56, totalling $10,071.56 to the Crown). Comparable penalty awards noted: *A Labour Inspector v Sail City Venture Ltd* [2020] NZERA Auckland 268; *A Labour Inspector v Buenaventura* [2023] NZERA 474; *A Labour Inspector v Shen Yuan* [2024] NZERA 189.
8. **Filing fee reimbursement:** The Labour Inspector sought reimbursement of the filing fee of $71.56. As the Inspector was successful in his claims, the Authority ordered Mr Gautam to pay this amount, included as part of the Crown account payment.
9. **Costs:**

[CONSENT ORDER: This is a consent determination recording a partial settlement agreement, not a determination on the merits.]

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Applicant: A Labour Inspector of the Ministry of Business, Innovation and Employment (labour inspector)
Respondent 1: Big Sky Food Limited (In Liquidation) (employer, first respondent)
Respondent 2: Edward Mark Miller (second respondent)
Respondent 3: Chang Xi (third respondent)
Respondent 4: Baolin Bao (fourth respondent)

Applicant: Amy Webster, counsel (firm not provided)
Respondent: Chang Chi, advocate (firm not provided)

A Labour Inspector brought proceedings against Big Sky Food Limited (in liquidation) and three individual respondents. The nature of the underlying employment relationship problems and the specific claims advanced are not described in the determination, as the matter was partially resolved by agreement during the Authority's management of the case. An investigation meeting was held across four days (12–15 May 2026) in Christchurch. During that process, the parties reached a partial settlement and requested the Authority issue a consent determination recording its terms. The terms of the settlement agreement are subject to a non-publication order under clause 10 of the Second Schedule of the Employment Relations Act 2000 (ERA), so their content is not disclosed in the published determination.

1. Whether the parties' partial settlement agreement should be recorded as a consent determination and made enforceable as orders of the Authority — (Established)
2. Whether a non-publication order should apply to the contents of the settlement agreement pursuant to clause 10 of the Second Schedule of the ERA — (Established)

1. The Authority has the power under the ERA to issue a determination by consent recording the terms of a settlement agreement reached between the parties, thereby making those terms enforceable orders of the Authority under s 237(1)(b) of the ERA. The parties jointly requested this course, and the Authority was satisfied that it was appropriate to do so. The determination records that the settlement is partial, meaning some aspects of the matter may remain unresolved, though no further detail is provided in the published text. The Authority issued the consent determination accordingly, with the attached settlement agreement forming part of the orders.
2. Clause 10 of the Second Schedule of the ERA provides a mechanism for the contents of settlement agreements recorded in Authority determinations to be subject to non-publication orders. The parties' settlement agreement was attached to the determination for the parties' own records, but the Authority made a non-publication order covering its contents. As a result, the specific terms of the settlement — including any remedies, admissions, or obligations — are not publicly disclosed. The non-publication order was made as a matter of course consistent with the parties' request and the applicable statutory provision.

The matter was partially resolved by consent; the Authority issued a consent determination recording the terms of the parties' settlement agreement as orders of the Authority, with the settlement terms subject to a non-publication order.

REMEDY (if applicable)
The settlement terms are subject to a non-publication order under clause 10 of the Second Schedule of the ERA and are not disclosed in the published determination. Specific remedies, amounts, or conditions cannot be reported. The determination is enforceable under s 237(1)(b) of the ERA. The settlement is described as partial, indicating that further proceedings may remain on foot in respect of unresolved issues, though no further detail is provided.

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Applicant: Zhengxi (also known as Nic) Hu (alleged employee)
Respondent: Pipeview Limited (alleged employer)

Applicant: Self-represented
Respondent: Weiqiang (also known as Brian) Feng for the Respondent

Mr Hu lodged a statement of problem in July 2025 alleging he was employed by Pipeview Limited as a labourer from December 2022 to July 2024, during which time he claims he received only one wage payment of $925.09 and was never provided an employment agreement. Pipeview denied any employment relationship, asserting instead that Mr Hu was a joint business partner with Ms Limei Lin (then sole director of Pipeview) and Mr Feng (Ms Lin's former husband). By agreement at a case management conference, the Authority identified the preliminary question for investigation as whether Mr Hu's claim was an employment relationship problem within the Authority's jurisdiction, or a civil dispute between former business partners. Mr Hu relied primarily on the single $925.09 payment (referenced as "wages") and a WeChat conversation as evidence of employment; Pipeview countered with Mr Hu's own bank records showing large reciprocal financial transactions, three further payments totalling $23,000 described as shareholder withdrawals, and Mr Hu's own affidavit filed in separate harassment order proceedings which made no mention of any employment relationship. The parties were also involved in multiple overlapping civil and tribunal proceedings arising from a soured business relationship, including a Chinese court judgment, High Court litigation, and Disputes Tribunal claims.

1. Whether the Authority has jurisdiction to investigate Mr Hu's claim — specifically, whether the real nature of the relationship between Mr Hu and Pipeview was one of employment or a civil business partnership arrangement (threshold/preliminary issue — Dismissed as to employment status).
2. Costs — whether either party should be awarded costs (Dismissed).

1. The applicable test is found in s 6 of the Employment Relations Act 2000, which requires the Authority to determine the "real nature of the relationship" having regard to all relevant matters, including any matters indicating the parties' intention, while not treating any single statement describing the relationship as determinative. The Authority applied the traditional common law indicia — control, integration, and the fundamental/economic reality test — as confirmed by the Supreme Court in *Bryson v Three Foot Six Ltd* [2005] ERNZ 372 and recently reaffirmed in *Raiser Operations BV & ors v E & anor* [2025] NZSC 162. The Authority found, by a wide margin, that these tests were not satisfied: Mr Hu's main evidence (the single "wages" payment) was undermined by Mr Feng's Inland Revenue schedule showing the identical net amount was paid to Mr Feng in the same manner, consistent with a business distribution rather than wages; Mr Hu's bank records showed large reciprocal financial flows and three further payments totalling $23,000 described as shareholder withdrawals; Mr Hu's own affidavit filed in harassment order proceedings made no mention of employment, which the Authority considered a significant omission; and a $30,000 payment by Mr Hu to Ms Lin shortly before her purchase of Pipeview supported the inference of a joint business venture. The Authority concluded that the preponderance of documentary evidence established the real nature of the relationship was a civil dispute between former business partners, not an employment relationship, and accordingly declined jurisdiction.
2. The Authority applied a discretionary costs assessment based on the fact that both parties were self-represented and neither had demonstrated that they had incurred actual costs in preparing for the investigation. The Authority determined that costs should lie where they fall and made no costs award.

The claim was dismissed in full; the Authority found it had no jurisdiction as the real nature of the relationship was a civil business partnership dispute, not an employment relationship.

None ordered. Costs lie where they fall.

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Applicant: Maritime Union of New Zealand (MUNZ) (union)
Respondent: Qube Ports NZ Limited (QPNZ) (employer)

Applicant: Simon Mitchell KC and Angus Drumm, counsel for the Applicant
Respondent: Alastair Espie and John Gray-Smith, counsel for the Respondent

MUNZ and QPNZ are parties to a collective agreement that came into force on 27 October 2022 and expired on 27 October 2024. MUNZ initiated bargaining for a new collective agreement on 27 August 2024. The central dispute is whether the so-called "Four Day Rule" — a provision preventing stevedores from being required to work more than four consecutive shifts without a 36-hour break — should be included in any new collective agreement; QPNZ's bargaining claim sought its removal. The dispute has generated significant collateral litigation, including a complaint to Maritime New Zealand, two improvement notices, an appeal to the District Court, an ERA determination, and proceedings in the Employment Court. The parties attended mediation on 17 March 2025 and 23 January 2026, and a judicial settlement conference on 17 July 2025, but remain unable to conclude a new collective agreement. QPNZ neither supported nor opposed the application for facilitation.

1. Whether the ground for facilitation under s 50C(1)(b)(i) of the Employment Relations Act 2000 is made out — specifically, whether bargaining has been unduly protracted. (Established)
2. Whether the ground for facilitation under s 50C(1)(b)(ii) of the Act is made out — specifically, whether extensive efforts (including mediation) have failed to resolve the difficulties preventing the parties from entering into a collective agreement. (Established)
3. Whether the reference for facilitation under s 50B of the Act should be accepted. (Established)
4. Costs. (Dismissed)

1. **Undue protraction — s 50C(1)(b)(i):** The Authority applied the test from *McCain Foods (NZ) Limited v Service and Food Workers Union Nga Ringa Tota Incorporated* [2009] NZEmpC 24, which defines "unduly protracted" as excessive or disproportionate protraction, as opposed to reasonable or expected delay. The Authority found that bargaining had become unduly protracted because of ongoing litigation between the parties, the Maritime New Zealand investigation, and a subsequent appeal — all arising from the unresolved dispute over the Four Day Rule. On that basis, the Authority was satisfied this limb of the ground was made out.
2. **Extensive efforts — s 50C(1)(b)(ii):** The Authority drew on *Service and Food Workers Union Nga Ringa Tota Inc v Sanford Limited* [2012] NZEmpC 168, which holds that "extensive efforts" refers to the nature and quality of attempts made by one or both parties to achieve settlement of a collective agreement, and that the focus is on achieving a collective agreement rather than merely on the bargaining process. The Authority acknowledged complexities arising from third-party litigation involving Maritime New Zealand, but was nonetheless satisfied that both parties had made extensive efforts to overcome the obstacles to concluding a collective agreement. Specifically, the parties attended mediation on two occasions and a judicial settlement conference, yet the dispute remained unresolved.
3. **Acceptance of the facilitation reference — s 50B:** Having found both limbs of s 50C(1)(b) established, the Authority accepted the reference for facilitation. It directed that a case management conference be convened to arrange facilitation, and noted that pursuant to s 50D of the Act, the facilitating member must be a different member of the Authority from the one who accepted the reference (i.e., not Member Greening).
4. **Costs:** The Authority made no order for costs, without elaboration.

The application for a reference to facilitation was upheld; the reference was accepted under s 50C(1)(b) of the Employment Relations Act 2000.

REMEDY (if applicable)
No monetary remedy ordered. The facilitation reference was accepted and a case management conference is to be convened to arrange facilitation by a different Authority member pursuant to s 50D of the Act. No costs order was made.