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[COSTS ONLY]

This is a costs determination arising from a substantive Employment Relations Authority decision ([2026] NZERA 168) in which all claims by employee Liye Zhu against her former employer and two associated individuals were dismissed in full. The key legal questions concern whether costs should be awarded to the successful respondents, the appropriate quantum of the costs contribution, and how costs should be apportioned among the three respondents. The Authority awarded $16,000 plus GST (double the notional starting tariff) on a joint and several basis against Ms Zhu, primarily because she unreasonably rejected four Calderbank settlement offers.

Applicant: Liye (Lily) Zhu (employee)
Respondent: The Diligent Company Limited (first respondent, employer); Yi (Jacqui) Shi (second respondent, director/shareholder); Zhongzhu (Eason) Peng (third respondent, shareholder/adviser)

Applicant: Self-represented (former advocate withdrew; no submissions filed)
Respondent: Marty Braithwaite, advocate for the Respondents

Ms Zhu was employed as a Sales Assistant by The Diligent Company Limited (trading as The Vaping Warehouse) from 26 August 2023 to 15 March 2024. She brought an extensive range of claims including breaches of employment standards and her employment agreement, good faith breaches, sexual harassment and failure to address it, discrimination, adverse action for a health and safety reason, unjustifiable disadvantage, and constructive dismissal. She also sought to hold the individual respondents personally liable for any wage arrears. All claims were dismissed in the substantive determination. The respondents sought indemnity costs of $22,324.20 GST inclusive. Ms Zhu's advocate withdrew prior to the costs process and Ms Zhu (now living in Australia) filed no costs submissions despite being given the opportunity to do so. The respondents had made four Calderbank settlement offers between August 2024 and August 2025, all rejected by Ms Zhu, each offering a payment greater than the nil she ultimately received.

1. Should the respondents be awarded costs at all — Status: Established (paras [9], [14]).

The Authority's power to award costs derives from clause 15 of Schedule 2 of the Employment Relations Act 2000. Costs are discretionary and must be exercised on a principled basis and not used to punish a party or express disapproval unless conduct increased actual costs. The usual principle is that a successful party is entitled to a contribution towards actual legal costs. As all three respondents were wholly successful, no reason existed to depart from this principle and an entitlement to a costs contribution was confirmed.

2. What actual costs and disbursements did the respondents incur — Status: Established (para [15]).

The respondents provided invoices establishing actual legal costs of $22,324.20 GST inclusive, comprising $22,453.20 incurred up to and including the two-day investigation meeting and $871.00 incurred afterwards (including preparation of costs submissions). The Authority accepted this evidence as establishing the actual costs base.

3. What is the notional starting tariff — Status: Established (para [16]).

The Authority applies a notional daily tariff approach: $4,500 for the first day of an investigation meeting and $3,500 for each subsequent day. The investigation meeting ran for two days, producing a notional starting tariff of $8,000. No authorities beyond the general tariff framework were cited for this calculation.

4. Should the notional starting tariff be decreased — Status: Dismissed (para [17]).

No party identified, and the Authority was not independently aware of, any factors warranting a reduction of the notional starting tariff. The tariff was therefore not decreased.

5. Should the notional starting tariff be increased — Status: Established (para [26]).

The Authority considered multiple grounds advanced by the respondents for an uplift: Ms Zhu's failure to attend the first mediation, unreasonable rejection of four Calderbank settlement offers (the last made after her evidence was filed), failure to provide claim details until directed, the allegedly reckless pursuit of claims with no prospects of success, and the alleged incompetence and obstructive conduct of her advocate. Relying on PBO Limited v Da Cruz and Fagotti v Acme & Co. Limited, the Authority found it appropriate to double the notional starting tariff to $16,000, primarily because a "steely approach" to the rejection of multiple reasonable Calderbank offers was warranted and all parties would have been better served by acceptance of any of those offers. The Authority did not separately address each ground but treated the cumulative unreasonable rejection of settlement offers as the determinative factor.

6. How should costs be apportioned among the three respondents — Status: Established (para [28]).

The respondents did not specify how costs should be apportioned between them individually. The Authority therefore awarded costs to all three respondents jointly and severally, leaving it to the respondents to apportion the sum among themselves as they see fit.

The costs claim was upheld in part: the respondents were awarded $16,000 plus GST (being double the notional starting tariff), ordered to be paid by Ms Zhu within 28 days, on a joint and several basis among the three respondents. The full indemnity amount of $22,324.20 sought was not awarded.

Costs: $16,000.00 plus GST, payable by Ms Zhu to the three respondents jointly and severally within 28 days of the date of this determination (18 June 2026). No other remedies were ordered (this is a costs-only determination following dismissal of all substantive claims).

[COSTS ONLY]

Keith Gorrett (employee) brought a costs application against Skibo Limited (employer) following a substantive determination in which the Authority found he had been unjustifiably dismissed but awarded him no remedy due to his wholly contributory conduct. The sole legal question was whether, and in what amount, costs should be awarded to the successful applicant notwithstanding that finding of full contribution. The Authority awarded Mr Gorrett $2,250 plus the filing fee of $71.55.

Applicant: Keith Gorrett (employee)
Respondent: Skibo Limited (employer)

Applicant: Dave Cain, advocate
Respondent: Allan Gray

In the substantive determination issued on 22 April 2026 (Gorrett v Skibo Limited [2026] NZERA 241), the Authority found that Mr Gorrett had been unjustifiably dismissed but declined to award any remedy on the basis that his conduct had wholly contributed to the dismissal and awarding a remedy would not be consistent with the Authority's obligation to act in equity and good conscience. Costs were reserved and the parties were encouraged to resolve the issue between themselves. The parties were unable to agree, and Mr Gorrett brought a formal costs application. Skibo submitted that costs should lie where they fall, apparently relying on Mr Gorrett's contributory conduct. The investigation meeting in the substantive matter was half a day in duration.

1. Whether costs should be awarded to Mr Gorrett at all, given that the substantive determination found his conduct wholly contributed to the dismissal and no remedy was awarded — Status: Established (paras [7]–[10]).

The Authority applied the principle that it is wrong in principle to deprive an employee who has been found unjustifiably dismissed of a costs award simply because there has also been a substantial finding of contribution, citing Kostic v Dodd [2007] CC 14/07 at [104]. The Authority further held, relying on White v Auckland District Health Board [2008] NZCA 451 at [37], that it would be inappropriate to take Mr Gorrett's blameworthy conduct into account a second time in the costs assessment. The Authority concluded that costs generally follow the event and that the finding of unjustifiable dismissal entitled Mr Gorrett to a costs contribution.

2. Whether the costs award should be adjusted upward or downward from the notional daily tariff starting point — Status: Dismissed (paras [5]–[9]).

The Authority applied the principles from Fagotti v Acme & Co Ltd [2015] NZEmpC 135 and JCE v The Chief Executive of the Department of Corrections [2018] NZERA 175, which identify factors such as unnecessary or unreasonable conduct, complexity, and conduct increasing costs as potential grounds for adjusting the tariff. The Authority found no relevant factors arising from the investigative process that would justify either an increase or a decrease from the starting-point tariff. The half-day investigation meeting meant the starting point was half the daily tariff rate of $4,500, equalling $2,250.

The costs application was upheld; Mr Gorrett was awarded $2,250 as a contribution to legal costs plus the filing fee of $71.55.

Costs contribution: $2,250 (equivalent to half the daily tariff rate, reflecting a half-day investigation meeting), payable by Skibo Limited to Mr Gorrett within 28 days of the determination date.
Filing fee reimbursement: $71.55.
No other remedies ordered (substantive remedies were declined in the earlier determination [2026] NZERA 241).

[CONSENT]

AFT, a former employee of BQM, brought an application in the Employment Relations Authority. The parties reached a full and final settlement of all matters at the investigation meeting on 17 June 2026 and requested that the settlement terms be made orders of the Authority. The Authority granted that request, made non-publication orders in respect of the parties' identities and settlement terms, and deemed the matter withdrawn with no costs order.

Applicant: AFT (former employee)
Respondent: BQM (employer)

Applicant: AFT, in person (self-represented)
Respondent: CZR, for the respondent

AFT was a former employee of BQM who brought an application in the Authority (the nature of the underlying claims is not disclosed in the determination). The parties attended an investigation meeting on 17 June 2026 and reached a full and final settlement of all matters between them on that day. The settlement was recorded in a written settlement agreement signed by both parties. The parties jointly requested that the settlement terms be made orders of the Authority and that confidentiality apply to those terms. The signed settlement agreement is held on the Authority's file but is not attached to the public determination.

1. Whether the settlement terms should be made orders of the Authority — Status: Established (paras [2]–[3]).

The parties jointly requested that their signed settlement agreement be converted into orders of the Authority. The Authority accepted this request and declared the terms of the settlement to be full, final, and binding in respect of all employment-related matters between the parties, with those terms now constituting orders of the Authority. No contested legal test was applied; the outcome was by consent.

2. Whether non-publication orders should be made in respect of the parties' identities and settlement terms — Status: Established (paras [4]–[7]).

The parties requested confidentiality for the settlement terms, and the Authority granted non-publication orders pursuant to clause 10 of Schedule 2 to the Employment Relations Act 2000 with the parties' consent. Randomly-generated letter strings were used to identify all parties and the respondent's in-house representative, bearing no resemblance to actual names. Orders were made prohibiting publication of the parties' names, any identifying information, and the content of the settlement.

3. Whether costs should be determined — Status: Dismissed (para [8]).

The Authority noted that, having made the consent orders, the matter was deemed withdrawn from the Authority with no issues as to costs between the parties. No costs award was made or sought.

The application was resolved by consent: the settlement was made an order of the Authority, non-publication orders were granted, and the matter was deemed withdrawn with no costs order.

The settlement terms (undisclosed, held on file) were made orders of the Authority by consent. No separate remedies were ordered by the Authority. Costs: nil (no costs as between the parties).

[COSTS ONLY]

Datarail Limited (formerly Trust Codes Global Limited) brought a costs application against former employee Christina Worley following a substantive determination in which Worley was found to have breached her employment agreement (though not to the extent claimed), resulting in a $3,000 penalty. Both parties sought costs contributions, with the employer seeking indemnity costs and out-of-pocket expenses, and the employee seeking a contribution on the basis that none of the specific claims were fully made out and the employer's conduct unnecessarily increased costs. The Authority declined both claims and ordered that all costs and expenses lie where they fall.

Applicant: Datarail Limited, formerly Trust Codes Global Limited (employer)
Respondent: Christina Worley (employee)

Applicant: Paul Ryan (self-represented, as the Applicant)
Respondent: Greg Lloyd, counsel for the Respondent

In the underlying substantive determination ([2026] NZERA 233, issued 20 April 2026), the Authority found that Ms Worley breached a clause of her employment agreement relating to email deletions and ordered her to pay a $3,000 penalty to TCGL under s 124 of the Employment Relations Act 2000. The Authority did not find direct or compelling evidence that Ms Worley had taken, shared, or was using confidential information or intellectual property in breach of her confidentiality obligations. Costs were reserved and the parties were unable to reach agreement following negotiation. The investigation meeting ran for two days in January 2026. In May 2025, TCGL made a without prejudice save as to costs settlement offer (undertakings plus $4,000 forensic contribution), which Worley declined; Worley's counteroffer on similar terms without the monetary payment was in turn declined by TCGL. TCGL, which was self-represented, sought indemnity costs or alternatively an expenses award totalling $9,067.27 (including forensic, expert witness, Microsoft recovery costs, and the filing fee), while Ms Worley sought a contribution to her legal costs on the basis that TCGL's conduct, including five interlocutory applications and failure to produce supporting evidence, unreasonably increased her costs.

1. Whether TCGL was the successful party entitled to costs — Status: Dismissed (paras [7]-[8], [20]-[22]).

The Authority found that both parties could claim limited success: TCGL established a lesser property breach through email deletions but failed on its primary claim regarding breach of confidentiality obligations and use of intellectual property. Applying the principle from Coomer v JA McCallum and Son Ltd [2017] NZEmpC 156 that the Authority must "stand back and look at things in the round" in cases of mixed success, the Authority concluded that no party had clearly prevailed overall, making a straightforward costs-follow-the-event award inappropriate.

2. Whether TCGL was entitled to indemnity costs — Status: Dismissed (paras [15]-[16]).

TCGL argued that Ms Worley's failure to meaningfully engage from the outset, her flat denial of all allegations, and her refusal of the May 2025 settlement offer justified an exceptional indemnity costs award. The Authority applied the test in Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400, which requires that a party behave badly or very unreasonably to justify indemnity costs, and confirmed such an award is exceptional. While the Authority accepted the matter could have resolved at minimal cost with earlier constructive engagement by Ms Worley, it found the high threshold in Bradbury was not met.

3. Whether TCGL was entitled to recover out-of-pocket expenses (forensic costs, Microsoft recovery costs, expert witness costs, filing fee) — Status: Partially established (paras [9]-[11]).

The Authority distinguished between the categories of expenses claimed. Forensic and Microsoft recovery costs ($3,245.72 combined) were declined on the basis that they were costs of business incurred in evidence-gathering prior to filing proceedings, not costs of taking the proceeding itself. The expert witness expenses (Mr Saint's costs) were found to be a direct and reasonable expense incurred in the proceeding, though not adequately particularised by invoice; the Authority was satisfied on the basis of Mr Saint's email that those expenses were legitimate. However, in light of the overall mixed success and conduct findings, no costs order was ultimately made in TCGL's favour (all costs to lie where they fall).

4. Whether Ms Worley was entitled to a contribution to her legal costs on the basis of TCGL's conduct — Status: Partially established in principle but ultimately not ordered (paras [17]-[19], [22]-[23]).

The Authority accepted that Ms Worley was entitled to a contribution in principle, noting that TCGL declined a reasonable June 2025 counteroffer, sought to introduce unsupported issues, failed to produce evidence on the majority of claims despite directions, made five interlocutory applications (including one post-determination), and incurred expert witness expenses after the undertakings offer. The Authority acknowledged Ms Worley's legal costs significantly exceeded the notional daily tariff. However, applying the principle from Flannigan v Cushman & Wakefield New Zealand Ltd [2023] NZERA 330 and Rodionov v Ozone Technologies Ltd [2018] NZEmpC 56 that mixed success can justify each party bearing their own costs, and noting both parties' conduct contributed to unnecessary costs, the Authority exercised its discretion to order no costs award at all.

5. Whether the Authority's general costs principles under clause 15 of Schedule 2 of the Employment Relations Act 2000 and the Da Cruz principles applied — Status: Established (paras [6], [20]).

The Authority confirmed the applicable framework: costs are discretionary, must be principled, are guided by the principles in PBO Ltd v Da Cruz [2005] ERNZ 808 (EmpC) (including that costs follow the event, awards are modest, conduct increasing costs can adjust awards, and equity and good conscience apply case by case), and are not punitive. These principles were applied throughout the analysis.

Both costs claims were dismissed; all costs and expenses are to lie where they fall.

None ordered. Each party bears their own costs and expenses.

[CONSENT]

Angelo Esguerra (employee) brought an employment relationship problem against Shinetec (New Zealand) Pty Limited (employer). The parties resolved the dispute on their own terms during the investigation, and the settlement agreement was converted into orders of the Authority by consent. The terms of settlement are subject to a non-publication order and are not disclosed in the determination.

Applicant: Angelo Esguerra (employee)
Respondent: Shinetec (New Zealand) Pty Limited (employer)

Applicant: May Moncur, advocate
Respondent: Melissa Johnston, counsel

Angelo Esguerra brought an employment relationship problem against Shinetec (New Zealand) Pty Limited. The specific nature of the dispute, the employment history, and the issues in contention are not disclosed in the determination. During the investigation process, the parties reached a private resolution on their own terms pursuant to section 149 of the Employment Relations Act 2000. The parties jointly requested that the terms of settlement be incorporated as orders of the Authority. The settlement agreement is held on the Authority file and its contents are subject to a non-publication order under clause 10 of the Second Schedule of the Act. There is no issue as to costs.

1. Whether the settlement agreement reached between the parties should be incorporated as orders of the Authority by consent — Status: Established (paras [1]-[3]).

The Authority has the power under section 149 of the Employment Relations Act 2000 to record agreed terms of settlement as its orders. The parties jointly requested this, and the Authority duly made the terms of the settlement agreement its orders by consent. No contested legal analysis was required given the consensual resolution.

2. Whether the contents of the settlement agreement should be subject to a non-publication order — Status: Established (para [4]).

Pursuant to clause 10 of the Second Schedule of the Employment Relations Act 2000, the contents of the settlement agreement are subject to a non-publication order. This was applied at the request of (or by operation of the Act in respect of) the parties, and the settlement agreement is held on the Authority file rather than published.

3. Whether costs should be awarded to either party — Status: Dismissed (para [1]).

The parties confirmed there is no issue as to costs, so no costs were sought or ordered.

The matter was resolved by consent, with the parties' settlement agreement incorporated as orders of the Authority; no costs were awarded.

The specific terms of the settlement are not disclosed, as they are subject to a non-publication order under clause 10 of the Second Schedule of the Employment Relations Act 2000. The settlement agreement is held on the Authority file. Costs: nil (no issue as to costs).

Hayden Sarcich, a senior employee at Fulton Hogan Limited (FHL), was summarily dismissed on 10 February 2026 following an employment investigation that found two allegations of serious misconduct substantiated: falsifying and approving an improper personal invoice causing approximately $12,000 loss to FHL, and accepting subcontractor-funded personal travel without proper disclosure. Mr Sarcich sought interim reinstatement pending substantive determination of his personal grievance, arguing the dismissal was both procedurally flawed and substantively unjustified. The Authority found he had an arguable case for unjustified dismissal but only a weakly arguable case for reinstatement, and ultimately declined the interim reinstatement application on the basis that the balance of convenience and overall justice favoured FHL.

Applicant: Hayden Sarcich (employee)
Respondent: Fulton Hogan Limited (employer)

Applicant: Richard Roil, counsel for the Applicant
Respondent: John Gray Smith and Kirsty McDonald, counsel for the Respondent

Mr Sarcich was employed by FHL from 2022, progressing through roles including Drainage Manager, Contracting Divisional Manager, and ultimately a senior position in Major Projects on the Otaki to north of Levin project. An employment investigation commenced in October 2025 into four allegations relating to his earlier role as Contracting Divisional Manager; two allegations (golf trip and unexplained absences) were ultimately not substantiated, while two were found proven — falsifying and approving invoices for concrete delivered to a private property (causing ~$12,000 loss) and accepting subcontractor-funded personal travel to the USA without formal disclosure. Mr Sarcich disputed both findings, arguing he was at arm's length from the concrete arrangement, had verbally notified his manager about the USA trip, and was treated inconsistently compared to another employee who received similar subcontractor-funded travel but was dealt with more leniently. He also raised procedural challenges, including late disclosure of five witness statements and the non-disclosure of a statement from Angela Howell (not provided to him or the decision-maker during the process). After his summary dismissal on 10 February 2026, Mr Sarcich raised a personal grievance and filed for interim reinstatement; the parties failed to resolve the matter at mediation.

1. Whether Mr Sarcich has established an arguable case for unjustified dismissal (the threshold for interim reinstatement) — Status: Established (paras [31]-[43]).

The applicable threshold is low — the applicant need only show the claim is more than frivolous and vexatious (NZ Tax Refunds v Brooks Homes Ltd [2013] NZCA 90). The Authority identified several matters supporting an arguable case: conflicts in evidence about the concrete invoice (including a potential uninterviewed witness and contested credibility findings); a material conflict between Mr Sarcich and his manager about whether the manager knew of the USA trip; the late disclosure of five witness statements containing potentially relevant contextual information about informal regional practices; the post-meeting disclosure of Angela Howell's statement (never provided to the decision-maker); and a failure to reassess overall seriousness once two allegations fell away. The Authority was satisfied the threshold was met on the untested affidavit evidence.

2. Whether Mr Sarcich has an arguable case that permanent reinstatement would be practicable and reasonable — Status: Partially established (weakly arguable) (paras [44]-[56]).

The Authority applied the test in Hong v Auckland Transport [2019] NZEmpC 54, which requires reinstatement to be both practicable (capable of being successfully carried out) and reasonable (balancing the prospective interests of the parties). Mr Sarcich proposed a range of conditions including changed reporting lines, removal of delegated financial authority, and separation from the relevant subcontractors. However, the Authority found the conduct in issue went to governance, integrity, and judgment rather than isolated procedural failings — concerns that would be universal regardless of which role Mr Sarcich occupied. Critically, a subsequently discovered email of 9 September 2025, in which Mr Sarcich prepared questions for a subcontractor (the same one that funded the USA trip) to ask FHL and a client, raised further concerns about judgment and conflicts of interest and was found to potentially undermine the case for reinstatement. The case for reinstatement was therefore characterised as only weakly arguable at this stage.

3. Whether the balance of convenience favoured granting or refusing interim reinstatement — Status: Resolved in favour of FHL/refusal (paras [57]-[63]).

The Authority weighed the prejudice to each party. Mr Sarcich identified significant harm: loss of income, continuity of service, professional reputation, and stigma from summary dismissal for serious misconduct. FHL identified the burden of oversight controls in a governance-sensitive regulated environment and reputational risks. The Authority noted that compensation would be available if Mr Sarcich ultimately succeeded and that the substantive matter would be heard in approximately three months. Considering also the nature of the conduct allegations and the 9 September email, the balance of convenience was found to weigh against interim reinstatement. Even on the question of interim reinstatement to payroll only, FHL's reputational concerns and potential loss were sufficient to tip the balance in its favour.

4. Whether overall justice favoured granting interim reinstatement — Status: Resolved in favour of FHL/refusal (paras [64]-[66]).

As a final check, the Authority stepped back and considered the overall strength of each party's case. While Mr Sarcich had an arguable (if weakly arguable) case for reinstatement, FHL's concerns about governance and the unresolved issues around the 9 September email tipped the overall justice in FHL's favour. The application for interim reinstatement was declined.

5. Costs — Status: Reserved (para [68]).

The Authority reserved costs pending a final determination on the substantive matters. No costs order was made at this stage.

The application for interim reinstatement was declined in full; costs were reserved pending the substantive hearing.

None ordered at this stage. Costs reserved pending final determination of substantive matters. The Authority indicated it would contact the parties to timetable evidence for the substantive hearing.

Devon Whitham, a former employee of Brutalitees Limited (trading as Brutal Ink, a tattoo and piercing shop in New Plymouth), claimed unjustified dismissal following a heated meeting on 19 September 2024 in which she was told she was not welcome back and subjected to abusive language. The key legal questions were whether an employment relationship existed, whether the dismissal was unjustified, whether statutory employment standards were breached, and whether the second respondent (sole director Christine Dawson) could be held personally liable. The Authority found in Ms Whitham's favour on the unjustified dismissal claim and statutory breaches against the first respondent, but declined to find the second respondent personally liable as employer or to grant leave for recovery of arrears from her personally.

Applicant: Devon Whitham (employee)
Respondent: Brutalitees Limited (first respondent, employer); Christine Dawson (second respondent, sole director and majority shareholder)

Applicant: Claudia Serra, advocate
Respondent: No appearance

Ms Whitham began working at Brutal Ink in May 2024 after responding to a Facebook post advertising a "Piercing Apprentice" role. She was initially told the role would be unpaid during training, and after approximately one month began receiving wage payments by bank transfer. She performed piercings and general shop duties using the business's tools and equipment, with her hours and days set by Christine Dawson. On 10 July 2024 she was sent a Contractor Agreement (which she signed on 9 August 2024), but the Authority found the real nature of the relationship was one of employment. From around September 2024, Ms Whitham had not been paid for several weeks of work, and on 19 September 2024 she attended a meeting with Dawson and another person (Josh) at which she was told she was not getting paid and was not welcome back, accompanied by threats and abusive language. No prior warnings had been given, and the dismissal occurred in the same meeting in which concerns were first raised. The respondents filed a Statement in Reply but neither attended the investigation meeting nor provided evidence, and the matter proceeded by formal proof.

1. Whether an employment relationship existed between Ms Whitham and the first respondent (Brutalitees Limited) — Status: Established (paras [34]-[47]).

The Authority applied s 6 of the Employment Relations Act 2000, requiring determination of the "real nature of the relationship" on an objective and intensely factual basis, with reference to control, integration, and whether the worker was in business on their own account (citing Rasier Operations BV v E Tū Inc [2025] NZSC 162 and Pilgrim v Attorney-General (No 2) [2023] NZEmpC 277). Despite the Contractor Agreement, the Authority found that Dawson exercised a high degree of control over hours and pay, Ms Whitham was fully integrated into the business, carried no commercial risk, did not issue invoices, and used the employer's tools. The contractual label was disregarded pursuant to s 6(3)(b). The Authority concluded that Ms Whitham was an employee, not an independent contractor.

2. Whether an employment relationship existed between Ms Whitham and the second respondent (Christine Dawson) personally, or as joint employer — Status: Dismissed (paras [39]-[47]).

The Authority acknowledged Ms Whitham's submissions regarding Dawson personally managing the relationship, the use of personal contact details, and the absence of PAYE deductions, but found these were insufficiently persuasive. Payments on record showed the first respondent as payer; a company must act through agents; Josh also had some management role; and the absence of PAYE indicated a potential tax breach rather than personal employment. Stepping back, the Authority found the employment relationship was with Brutalitees Limited alone.

3. Whether Ms Whitham was unjustifiably dismissed — Status: Established (paras [48]-[55]).

The Authority applied the s 103A(2) objective test of whether BL's actions and conduct were what a fair and reasonable employer could have done in the circumstances. The four procedural requirements under s 103A(3) were assessed, as well as the good faith obligations in s 4(1A)(c). The recording of the 19 September 2024 meeting confirmed that Ms Whitham was not advised of the meeting's purpose, was not warned her employment was at risk, was not given a genuine opportunity to respond, and the dismissal occurred within the same meeting that concerns were raised. The Authority found the dismissal both procedurally and substantively unjustified.

4. Whether a reduction in remedies for contributory conduct under s 124 of the Act was warranted — Status: Dismissed (paras [66]-[68]).

Section 124 requires the Authority to consider whether the employee's own actions contributed to the situation giving rise to the grievance, and to reduce remedies accordingly if so. While the Statement in Reply listed alleged wrongdoings by Ms Whitham, no witness statements or corroborating evidence were provided by the respondents, and the Authority was satisfied with Ms Whitham's answers when questioned. No warnings had ever been issued to Ms Whitham, so the alleged conduct was never raised with her. The Authority made no reduction.

5. Whether Ms Whitham was entitled to compensation for lost wages under s 123(1)(b) — Status: Established (paras [57]-[59]).

Under s 128 of the Act, an employee with a personal grievance is entitled to the lesser of actual lost remuneration or three months' ordinary time remuneration. Ms Whitham claimed 25 hours per week at the minimum wage of $23.15/hour for 13 weeks post-dismissal ($7,523.75). The Authority was satisfied she had met her obligation to mitigate loss and ordered payment of the full claimed amount.

6. Whether Ms Whitham was entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) — Status: Established (paras [60]-[65]).

The Authority assessed the harm caused by the dismissal, noting Ms Whitham's anxiety, fear of encountering Dawson, social withdrawal, depression, sleep difficulties, and being compelled to move house twice due to threats made at the meeting. The Authority accepted the plausibility of this impact given Dawson's physical threats and the abusive language used. Applying guidance from Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71, Waikato DHB v Archibald [2017] NZEmpC 132, and Richora Group Ltd v Cheng [2018] NZEmpC 113, the Authority awarded $15,000.

7. Whether Ms Whitham was owed unpaid wages and holiday pay — Status: Established (paras [69]-[71]).

Ms Whitham calculated gross wages of $10,417.50 for 18 weeks at 25 hours per week at $23.15/hour, received $3,701.68, and sought the balance of $6,715.82 less $231.50 for two days' sick leave, totalling $6,484.32 in unpaid wages. Holiday pay was calculated at 8% of total gross earnings ($10,417.50 = $833.40). In the absence of any rebuttal evidence from BL, both amounts were ordered.

8. Whether penalties should be awarded for statutory breaches (failure to provide a written employment agreement, failure to maintain wage and time records, and non-payment of wages and holiday pay) — Status: Established (paras [72]-[81]).

The Authority was satisfied that three breaches under the Act were made out, each attracting a maximum penalty of $20,000 against a company (s 135(2)). Applying Borsboom v Preet PVT Limited [2016] NZEmpC 143 and s 133A factors (nature, culpability, deterrence), the Authority adopted a global approach and imposed a total penalty of $1,500 ($500 per breach). Half ($750) was ordered payable to Ms Whitham and half ($750) to the Crown, reflecting that while the Crown is the default recipient, the fundamental nature of the wage non-payment breach supported some payment to the employee.

9. Whether leave should be granted under s 142Y to recover wage and holiday pay arrears from the second respondent personally — Status: Dismissed (paras [84]-[87]).

Section 142Y(2) requires that recovery from a person involved in the breach is available only to the extent the employer is unable to pay. Ms Whitham submitted the first respondent was due to be removed from the Companies Register as an indicator of insolvency, but provided no supporting evidence and the Register contained no correspondence to that effect as at the determination date. The Authority therefore could not be satisfied on the balance of probabilities that BL was unable to pay, and declined to grant leave.

10. Whether a penalty should be imposed against the second respondent under s 142X as a person involved in a breach — Status: Not reached (paras [5], [84]-[87]).

Although Ms Whitham sought a penalty against Christine Dawson under s 142X, the Authority's analysis focused on the s 142Y leave application and concluded that the employment relationship was with the first respondent alone. No separate determination on a s 142X penalty against the second respondent was made, as the personal liability pathway was not established.

11. Costs — Status: Reserved (paras [88]-[90]).

The Authority reserved costs and encouraged the parties to resolve the matter between themselves. If not resolved, Ms Whitham may lodge a costs memorandum within 28 days, with the respondents having 14 days to reply. The Authority indicated it would apply the standard daily tariff approach.

The claim was substantially upheld: unjustified dismissal established, unpaid wages and holiday pay awarded, humiliation compensation awarded, and penalties imposed against the first respondent; claims against the second respondent personally were dismissed.

- Unpaid wages: $6,484.32 gross (total wages owing of $6,715.82 less $231.50 for two days' sick leave)
- Holiday pay: $833.40 gross (8% of total gross earnings of $10,417.50)
- Lost wages (grievance): $7,523.75 gross (13 weeks post-dismissal at 25 hours/week at $23.15/hour)
- Compensation for humiliation, loss of dignity, injury to feelings: $15,000.00
- Penalty payable to Ms Whitham: $750.00
- Penalty payable to the Crown: $750.00
- All amounts payable by Brutalitees Limited within 28 days of the determination date
- Leave to recover from second respondent personally under s 142Y: Declined
- Reinstatement: Not sought/not ordered
- Costs: Reserved; parties encouraged to resolve between themselves; process outlined if not resolved

Rachel Hankins, an accountant employed on a fixed-term contract by Huhtamaki Henderson Limited (HHL) to cover maternity leave, brought multiple employment relationship problems including unjustified dismissal, unjustified disadvantage, discrimination, and a protected disclosure claim. The Authority found that HHL had validly established the fixed-term agreement but prematurely terminated it and unlawfully cut off IT access before the term expired. The claims for discrimination, laptop-return disadvantage, bullying, and protected disclosure were all dismissed; the unjustified dismissal and IT-access disadvantage claims were upheld and remedied.

Applicant: Rachel Hankins (employee/accountant)
Respondent: Huhtamaki Henderson Limited (employer)

Applicant: Self-represented (applicant in person)
Respondent: Tim Mackenzie, counsel for the Respondent

Rachel Hankins commenced employment with HHL on 6 August 2024 as an accountant under a fixed-term agreement due to end on 15 August 2025, to cover the maternity leave of a permanent employee. On 6 August 2025, HHL's finance manager sent Ms Hankins an email with the subject "End of fixed term contract – confirmation", requesting return of company property by 8 August 2025, advising there was no handover required, and wishing her well for the future. Ms Hankins' access to HHL's IT system was terminated at 3:14pm on 12 August 2025, three days before the contracted end date, and HHL confirmed she would be paid through to 15 August 2025. Ms Hankins contended the fixed-term agreement was not genuine, that her employment was prematurely terminated, that she was disadvantaged by loss of IT access and demands to return her laptop, that she was discriminated against on grounds of ethical belief and employment status, and that HHL retaliated against her for making a protected disclosure about internal accounting concerns. HHL maintained the fixed-term arrangement was properly established, that communications about return of property were legitimate administrative steps, and denied any unlawful conduct.

1. Whether HHL satisfied the fixed-term requirements under s 66(2) of the Employment Relations Act 2000 — Status: Established (paras [17]-[26]).

The Act requires an employer to have genuine reasons based on reasonable grounds for engaging an employee on a fixed-term basis and to advise the employee of when/how employment will end and why (s 66(2)). The Authority applied the test from Morgan v Tranzit Coachlines Wairarapa Limited [2019] NZEmpC 66, noting that sincerity and absence of improper motive are helpful markers of genuineness. Although Ms Hankins' role was broader than the incumbent's cost-accounting function, the Authority found that covering maternity leave is a genuine reason for a fixed-term arrangement and that HHL had properly notified Ms Hankins of the end date and reason. HHL therefore satisfied the s 66(2) requirements.

2. Whether HHL unjustifiably dismissed Ms Hankins by terminating her employment prior to the expiry of the fixed term — Status: Established (paras [27]-[44]).

The Authority applied the objective test from Cornish Truck & Van Limited v Gildenhuys [2019] NZEmpC 6 at [45]: whether it was reasonable for someone in Ms Hankins' position to consider her employment had been terminated. The Authority found that the combination of the 6 August email (confirming conclusion of engagement, no handover required, farewell language), the demand to return property by 8 August, and the removal of IT access on 12 August objectively constituted dismissal before the 15 August expiry date. The employment agreement required one month's notice or payment in lieu if terminated early; no legal basis for early termination existed. Ms Hankins was unjustifiably dismissed.

3. Whether Ms Hankins was unjustifiably disadvantaged by HHL terminating her IT system access prior to the expiry of the fixed term — Status: Established (paras [45]-[49]).

The Authority found that Ms Hankins had a right to continue working until 15 August 2025 and that HHL had no legal basis for removing her IT access before that date. Removal of IT access prevented her from performing her duties. HHL's action therefore constituted an unjustified disadvantage.

4. Whether Ms Hankins was unjustifiably disadvantaged by HHL requiring her to return a company-owned laptop — Status: Dismissed (paras [50]-[55]).

Although the Authority accepted Ms Hankins had a right to retain the laptop temporarily to access evidence for her personal grievances, it found that because Ms Hankins had not actually returned the laptop, the alleged disadvantage had not crystallised. Accordingly the personal grievance claim in respect of the laptop was not made out.

5. Whether Ms Hankins was unjustifiably disadvantaged by HHL bullying and harassing her regarding return of the company device — Status: Dismissed (paras [56]-[58]).

The Authority applied the test from FGH v RST [2018] NZEmpC 60 at [201], requiring repeated, unreasonable behaviour directed at a person creating a risk to health and safety. HHL's requests for return of the laptop were not unreasonable and did not create a risk to Ms Hankins' health and safety. The bullying and harassment claim failed.

6. Whether Ms Hankins was discriminated against by HHL on the grounds of ethical belief and/or employment status — Status: Dismissed (paras [59]-[63]).

Ms Hankins relied on s 21(k) of the Human Rights Act 1993. The Authority found that Ms Hankins' understanding of "ethical belief" (which in law refers to absence of religious belief) and "employment status" (which in law means being unemployed) did not correspond to the factual circumstances she described. The discrimination claim was not established.

7. Whether Ms Hankins made a protected disclosure under the Protected Disclosures (Protection of Whistleblowers) Act 2022 and, if so, whether HHL retaliated — Status: Dismissed (paras [64]-[71]).

The Authority applied the five-part framework from Kavallaris v Inframax Construction Limited [2024] NZEmpC 212 at [56] and focussed on whether Ms Hankins' concerns amounted to "serious wrongdoing" as defined in s 10 of the PDA. Ms Hankins raised concerns about internal accounting process inconsistencies (stock adjustments, product codes, approval processes), described by her as aimed at supporting accuracy and shared accountability. The Authority found these concerns related to internal accounting processes and did not meet the statutory threshold for serious wrongdoing. No protected disclosure was made and the retaliation claim therefore failed.

8. Whether Ms Hankins is entitled to compensation under s 123(1)(c)(i) of the Act — Status: Established (paras [72]-[83]).

The Authority assessed compensation as the emotional harm suffered by the employee as a result of the personal grievance, not as a punitive measure (Paykel Ltd v Ahlfield [1993] 1 ERNZ 344; Pyne v Invacare New Zealand Limited [2023] NZEmpC 179 at [41]). For the IT access disadvantage, Ms Hankins felt her work had no value and that she was a "waste of space"; an award of $3,500 was appropriate. For the unjustified dismissal, Ms Hankins felt isolated and shocked by the unilateral early termination; an award of $8,000 was appropriate, having regard to comparable cases (Tillmans Fine Furniture Ltd v Rookes [2025] NZEmpC 152; McGregor v Waimakariri District Council [2012] NZERA Christchurch 54).

9. Whether Ms Hankins is entitled to reimbursement of lost remuneration under s 128 of the Act — Status: Partially established (paras [84]-[90]).

The Authority applied the principle from Faitala v The Pacific Island Business Development Trust [2026] NZEmpC 53 at [74] that allowance must be made for the likelihood that employment would have ended anyway. Because the fixed-term agreement was validly constituted and would have expired on 15 August 2025, and because Ms Hankins was paid through that date, there was no general lost remuneration. However, HHL was required to pay the contractual notice equivalent of four weeks' salary given the early termination, and this amount was ordered.

10. Whether remedies should be reduced for contributory conduct under s 124 of the Act — Status: Dismissed (para [91]).

The Authority found that Ms Hankins did not contribute to the situations giving rise to her personal grievance claims. No reduction in remedies was required.

11. Whether either party is entitled to costs — Status: Dismissed (paras [93]-[94]).

Ms Hankins was unrepresented. The Authority ordered that costs lie where they fall, with no award made to either party.

The claims for unjustified dismissal and unjustified disadvantage (IT access) were upheld; the claims for unjustified disadvantage (laptop return and bullying), discrimination, and protected disclosure were dismissed.

Compensation (unjustified disadvantage — IT access): $3,500 pursuant to s 123(1)(c)(i) of the Act, payable within 28 days.
Compensation (unjustified dismissal): $8,000 pursuant to s 123(1)(c)(i) of the Act, payable within 28 days.
Lost remuneration: 4 weeks' salary (equivalent amount — exact dollar figure not stated in the determination), payable within 28 days.
Contribution reduction: None applied.
Costs: None ordered; costs lie where they fall.
Reinstatement: Not ordered (not sought).

NZEI Te Riu Roa Incorporated (a union) brought a pay equity claim against the Secretary for Education. Following an earlier determination declining the Secretary's jurisdictional challenge, the Secretary applied under s 177 of the Employment Relations Act 2000 to refer a question of law to the Employment Court and to suspend the Authority's investigation pending the Court's opinion. The Authority agreed to refer the question and suspended its investigation accordingly.

Applicant: NZEI Te Riu Roa Incorporated (union/employee representative body)
Respondent: Secretary for Education (employer)

Applicant: Peter Cranney, counsel for the Applicants
Respondent: Megan Vant, counsel for the Respondent

NZEI Te Riu Roa Inc raised a pay equity claim against the Secretary for Education under the Pay Equity Act 1972 (specifically s 2AAC(b) and s 3(1)(b)). In an earlier determination ([2026] NZERA 7), the Authority declined the Secretary's challenge to jurisdiction, finding it could not determine at that stage that no effective remedy was available, as factual matters remained uninvestigated. The Secretary challenged that earlier determination in the Employment Court and simultaneously applied under s 177 of the Employment Relations Act 2000 for referral of a question of law to the Court, seeking also to delay the Authority's investigation pending the Court's opinion. NZEI did not object to the referral but asked instead for full removal of the matter under s 178. The matter was determined on the papers by consent, with both parties filing written submissions in April 2026.

1. Whether the Secretary's application for referral of a question of law under s 177 of the Employment Relations Act 2000 should be granted — Status: Established (paras [6]-[14]).

Section 177 permits the Authority to refer a question of law to the Employment Court during an investigation. Unlike s 178 (removal), s 177 does not require the question to be an "important question" but it must be a genuine question of law rather than a mixed question of law and fact. The Authority found that the question posed — whether a pay equity claim settlement satisfies an employer's obligation under s 2AAC(b) for 10 years such that no actionable breach can arise during that period — was a pure question of law arising from a novel statutory framework (the Pay Equity Act 1972) not previously considered by the Authority or the Court. The Authority was satisfied the question overlapped with the challenge already before the Employment Court and that referral at this preliminary stage was appropriate and efficient, following guidance in Nelson v Porirua Community Law Research Centre Inc [1993] 2 ERNA 1109 that referral is apposite when the issue arises before or early in the hearing.

2. Whether NZEI's alternative application for full removal of the matter under s 178 should be granted — Status: Dismissed (paras [2], [6]).

NZEI submitted that since no investigation had commenced, s 177 was inapplicable and the Authority should instead remove the entire matter under s 178(1). The Authority did not accede to this request, instead proceeding under s 177 referral. The Authority implicitly found that an investigation was already underway given that a preliminary jurisdictional issue had been determined, rendering s 177 available. No separate analysis of s 178 removal criteria was conducted.

3. Whether the Authority had jurisdiction to investigate the underlying employment relationship problem (pay equity claim) — Status: Established (paras [7], [10]).

The Authority confirmed (consistently with its earlier determination [2026] NZERA 7) that the matter was properly before it, as the Authority has exclusive jurisdiction to determine employment relationship problems under s 161(1) of the Employment Relations Act 2000 and can deal with any question connected with any Act arising during an investigation (Schedule 2, clause 1). This jurisdictional foundation was a necessary prerequisite to any s 177 referral.

4. Whether the Authority's investigation should be suspended pending the Court's opinion — Status: Established (para [14]).

As a consequential order following the s 177 referral, the Authority suspended its investigation of the application until the Employment Court's opinion is received, avoiding the risk of inconsistent findings and promoting procedural efficiency.

The application for referral of a question of law to the Employment Court was upheld, and the Authority's investigation is suspended pending the Court's opinion; NZEI's alternative request for full removal was not granted.

None ordered. The determination is procedural/interlocutory in nature. The Authority suspended its own investigation pending receipt of the Employment Court's opinion on the referred question of law. No substantive remedies were addressed.

Robert Dignum, a Systems Engineer employed by Veolia Water Services (ANZ) Pty Ltd since 1997 (through a predecessor company), brought a personal grievance claim after Veolia replaced his written-off company ute with a lower-specification vehicle that he argued did not meet his personal and family needs and was inconsistent with his agreed remuneration package. The key legal questions were whether Dignum's employment agreement (expressly or impliedly) entitled him to a higher-specification vehicle, and whether Veolia's allocation of a "tool of trade" vehicle constituted an unjustifiable disadvantage. The Authority found in Dignum's favour on the disadvantage claim, ordering compensation for lost remuneration in an amount to be agreed by the parties, but declined to award compensation for humiliation or to impose a penalty.

Applicant: Robert Paul Dignum (employee — Systems Engineer)
Respondent: Veolia Water Services (ANZ) Pty Ltd (employer)

Applicant: Mary Jane Thomas, counsel for the Applicant
Respondent: Sarah Ongley, counsel for the Respondent

Robert Dignum has been employed continuously since 1997 (by Veolia's predecessor, United Water, and then by Veolia from 2012 as a Systems Engineer in Queenstown). In 2007–2008, Dignum's remuneration package was restructured so that full private use of a company vehicle replaced his annual bonus, superannuation, health cover, life cover, and overtime payments, with the vehicle provided in accordance with the company's Motor Vehicle Policy. Over the years Dignum was allocated three double-cab utility vehicles in Queenstown, the last being a five-seater Mazda BT50 GTX (with no company signage) from August 2021. That vehicle was written off in a September 2024 accident (through no fault of Dignum), and Veolia replaced it with a two-and-a-half-door Mitsubishi Ute carrying company signage and GPS monitoring — a vehicle Dignum immediately complained was inadequate for family use and inconsistent with his agreed terms. Despite extensive exchanges, mediation, and a meeting with senior management, Veolia maintained that the Mitsubishi Ute was correctly allocated under its vehicle selection policy for Dignum's "Technical Professional" category, and declared the matter "not open to negotiation." Dignum raised a personal grievance on 4 February 2025 and applied to the Authority on 17 July 2025, arguing unjustifiable disadvantage and seeking a replacement vehicle, compensation for distress, reimbursement of foregone income, and a penalty.

1. Whether the express or implied terms of Dignum's employment entitled him to a company vehicle meeting his personal and family needs — Status: Established as an express (incorporated) term (paras [17]-[23], [27]-[31]).

The Authority applied the objective interpretation principles for employment agreements as set out by the Supreme Court and the Employment Court in Godfrey Hirst New Zealand Ltd v National Distribution Union and Le Gros v Fonterra Co-Operative Group Ltd, focusing on the text of the agreement and relevant background. The IEA itself contained no specification as to vehicle type, but cl 34 expressly incorporated company policies into the IEA, and successive written variations confirmed the vehicle was provided "in accordance with the [United Water/Veolia] Motor Vehicle Policy." The Authority rejected Dignum's counsel's argument that the entitlement rested on unwritten custom and practice, finding instead that the Motor Vehicle Policy was an express incorporated term governing vehicle allocation. The Authority found that Veolia's own policy, properly applied, did not support categorising Dignum's vehicle as a "Tool of Trade" vehicle given the agreed remuneration structure, and that past allocation practice (providing vehicles above the "Tool of Trade" category) was consistent with the bargain struck.

2. Whether Dignum was unjustifiably disadvantaged by the allocation of a lower-specification replacement vehicle — Status: Established (paras [32]-[36]).

Under s 103(1)(b) of the Employment Relations Act 2000, an unjustifiable disadvantage requires that the employer's actions or omissions disadvantaged the employee in a manner not consistent with how a fair and reasonable employer would have acted in the circumstances. The Authority found that while Veolia had applied its vehicle selection policy consistently in a formal sense, it had not acted as a fair and reasonable employer by declining to exercise its admitted discretion to allocate a higher-specification vehicle, which would have been consistent with past practice and with the agreed basis on which Dignum had foregone other remuneration benefits. The Authority found Dignum had "bought the right" to a higher-specification vehicle and that allocating a "Tool of Trade" vehicle without the corresponding policy concession (that the vehicle value is not counted as part of remuneration) was unjustifiably disadvantageous. Accordingly, the disadvantage was established.

3. Whether Dignum was entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Act — Status: Dismissed (para [37]).

The Authority considered whether the circumstances warranted a compensatory award for hurt and humiliation. Noting that Dignum had at all material times continued to have access to a company vehicle for private use (even if of a lower specification), the Authority found that the facts did not make out a case for compensation under s 123(1)(c)(i) and declined to award it.

4. Whether a penalty should be imposed on Veolia for breaching Dignum's employment agreement — Status: Dismissed (para [38]).

The Authority considered whether to order a penalty for a breach of the employment agreement. It found that Veolia had not committed an explicit breach because it had legitimately applied its own vehicle selection policy, even if the application was inconsistent with the broader contractual context and past practice. On that basis, imposition of a penalty was found to be inappropriate.

5. Whether Dignum was entitled to compensation for lost remuneration/benefits under s 123(1)(c)(ii) of the Act — Status: Established, quantum to be determined (para [39]-[40]).

The Authority found that by allocating the vehicle on a "Tool of Trade" basis without the corresponding policy concession that its value would not be counted against Dignum's remuneration, Dignum had lost the benefit of remuneration he had foregone. Dignum conservatively quantified this loss at $13,500 per year as an ongoing loss from September 2024. The Authority directed the parties to agree on the quantum, reserving leave for Dignum to apply to the Authority to determine the amount if agreement could not be reached.

6. How costs should be dealt with — Status: Reserved (paras [41]-[43]).

Costs were reserved. If the parties cannot resolve costs between themselves, Dignum may lodge a memorandum on costs within 28 days of the determination, with Veolia having 14 days to reply. The Authority indicated costs would ordinarily be assessed on its standard daily tariff basis, subject to adjustment for relevant circumstances.

The claim was partially upheld: the unjustifiable disadvantage claim (lost remuneration) was established, but the claims for hurt and humiliation compensation and for a penalty were dismissed.

Lost remuneration (s 123(1)(c)(ii)): Compensation for the value of the downgraded vehicle provision from the date of allocation (September 2024) and ongoing, conservatively estimated by Dignum at $13,500 per year — amount to be agreed by the parties; leave reserved to return to the Authority if agreement is not reached.
Compensation for humiliation/distress (s 123(1)(c)(i)): None ordered.
Penalty: None ordered.
Reinstatement: Not applicable/not sought.
Costs: Reserved.

Wiremu Caldwell, a Residential Youth Worker employed by Oranga Tamariki – Ministry for Children at a secure youth justice residence, was summarily dismissed on 5 August 2024 following a lengthy investigation into serious misconduct including screening inappropriate content for young persons, sexualised language, protocol breaches, and intimidatory conduct. Mr Caldwell brought unjustified dismissal and disadvantage grievances challenging the investigation process and dismissal. All claims were dismissed; the Authority found the dismissal was justified and OT's process met the standard of a fair and reasonable employer under s 103A of the Employment Relations Act 2000.

Applicant: Wiremu Caldwell (employee — Residential Youth Worker)
Respondent: The Chief Executive, Oranga Tamariki – Ministry for Children (employer)

Applicant: Andrew McKenzie, counsel for the applicant
Respondent: Hamish Kynaston and Raukura Doyle, counsel for the respondent

Mr Caldwell was employed under a collective employment agreement as a Residential Youth Worker at Te Puna Wai (TPW), a secure youth justice residence housing up to 40 young persons. In March 2023, prior to the investigation leading to his dismissal, the residence manager addressed seven complaints about Mr Caldwell's language and behaviour and issued a letter of expectations. In June 2023, the Office of the Children's Commissioner (OCC) made an unannounced visit to TPW and raised urgent concerns about Mr Caldwell, including allegations of screening sexual content for young persons, running a "masturbation programme," sexualised comments to young persons, and intimidatory conduct. OT commenced a formal investigation, stood Mr Caldwell down immediately on 15 June 2023, and engaged external legal counsel as investigator; 23 interviews were conducted and Mr Caldwell was interviewed in November 2023. A parallel police investigation concluded with no criminal action taken. The decision maker, Ms Fairie, accepted most but not all investigation findings, concluded there was cumulative serious misconduct, and summarily dismissed Mr Caldwell on 5 August 2024. Mr Caldwell challenged the dismissal as unjustified and raised three disadvantage grievances relating to his stand-down, the widening of the investigation Terms of Reference, and reinvestigation of matters previously addressed in the March 2023 letter of expectations.

1. Non-publication order — Status: Established (paras [1]-[2]).

The Authority exercised its discretion under Schedule 2, clause 10(1) of the Employment Relations Act 2000 to prohibit publication of any information identifying young persons in the custodial care or formerly in the custodial care of Oranga Tamariki. The starting point of open justice was considered, and no impediment was found to making this narrow order protecting vulnerable young persons' identities.

2. Disadvantage grievance — whether OT disadvantaged Mr Caldwell by standing him down without consultation or reasons — Status: Dismissed (paras [113]-[123]).

The Authority applied the principle from Booth v Big Kahuna Holdings Limited [2014] NZEmpC 134 that sudden expulsion from the workplace without consultation can be unfair, but also acknowledged from Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587 that immediate safety concerns may justify suspension without prior consultation. The Authority accepted OT's submission that the urgency and seriousness of the OCC's concerns — involving allegations of sexual misconduct toward vulnerable young persons — justified the immediate stand-down without prior consultation, and that Ms Lavender attempted to handle the matter discreetly to minimise humiliation. The matter was subsequently rectified through consultation about paid suspension on 16–21 June 2023. The Authority also noted that an OT Chief Executive's press conference statement characterising stood-down employees as "no longer part of OT" was "mis-spoken" but that Mr Caldwell was not named and was represented, and this did not materially alter the outcome.

3. Disadvantage grievance — whether OT disadvantaged Mr Caldwell by unilaterally changing the Terms of Reference — Status: Dismissed (paras [124]-[126]).

The Authority found the TOR expressly provided for the investigator to bring emerging issues to the decision maker's attention and for the investigation to be widened accordingly, with Mr Caldwell to be advised of any amendments. The additional allegation that was added (regarding sexist and derogatory comments about women in front of young persons) was put to Mr Caldwell in detail with reference to interview transcripts, and he had a full opportunity to respond through his representative. No unfair disadvantage was established.

4. Disadvantage grievance — whether OT disadvantaged Mr Caldwell by reinvestigating matters already dealt with in the March 2023 letter of expectations — Status: Dismissed (paras [127]-[135]).

The Authority examined each of the seven complaints addressed in March 2023 and found that, with minor exceptions, the subsequent investigation addressed materially different or broader conduct than what had been dealt with previously. As to the 10 February 2023 TikTok incident (complaint six), the March 2023 process had not addressed the masturbating young person or the female staff member present; a full investigation was warranted and was ultimately to Mr Caldwell's benefit. As to one specific phrase in complaint four ("Fuck no, I raw dog that shit…"), this may have been reinvestigated, but the Authority found this was at most a minor procedural defect that did not result in unfairness given the breadth of other substantiated findings. The claim was unsuccessful.

5. Whether OT sufficiently investigated the allegations before dismissing Mr Caldwell (s 103A(3)(a)) — Status: Established in favour of OT (paras [136]-[142]).

The Authority applied the s 103A objective justification test and found OT's investigation had the hallmarks of a thorough and detailed process: 23 interviews, a 103-page report with 74 attached documents, all material shared with Mr Caldwell, no confidential interviewees, and the investigator carefully weighing allegations against responses. The Authority distinguished Campbell v Commissioner of Salford School [2015] NZEmpC 122, where generalised allegations and investigator bias were found; here allegations were specific, focused on conduct, and no bias was established. The allegation of the investigator "building a case" was rejected.

6. Whether OT raised its concerns and gave Mr Caldwell a reasonable opportunity to respond before dismissing him (s 103A(3)(b) and (c)) — Status: Established in favour of OT (para [143]).

The Authority found that if anything the process provided Mr Caldwell with more than adequate notice of concerns and opportunity to respond: he received full documentation including all 23 interview transcripts, had Ms Gemmel from NUPE represent him throughout, provided a 48-page written submission in response to the draft report, and was given further opportunity to respond to the proposed outcome. No deficiency was found under these s 103A factors.

7. Whether OT genuinely considered Mr Caldwell's explanation before dismissing him (s 103A(3)(d)) — Status: Established in favour of OT (paras [144]-[157]).

The Authority found that decision maker Ms Fairie spent several weeks considering all material and made genuine changes: she excluded the 10 February TikTok incident (previously dealt with in March 2023) and removed a sub-allegation Mr Isaako had addressed informally. While her final decision lacked express specificity about which allegations constituted serious misconduct, the Authority accepted she referenced the investigation report sufficiently. Mitigating factors raised for Mr Caldwell — an alleged undiagnosed condition affecting communication, concussion affecting memory, lack of training, and claims of a cohort of staff targeting him — were all assessed and rejected as not constituting matters a fair and reasonable employer was required to treat as mitigating in the circumstances.

8. Whether the decision to summarily dismiss for serious misconduct was justified under s 103A — Status: Established in favour of OT (paras [156]-[157]).

Applying the s 103A objective test, the Authority found the cumulative substantiated findings — inappropriate screenings of adult-rated content, sexualised language to and in front of young persons, derogatory language about women in front of young persons, protocol breaches (including use of personal cell phone in units), and telling others he was untouchable — were sufficient for a fair and reasonable employer in OT's position to conclude serious misconduct had occurred and that trust and confidence in Mr Caldwell as a Residential Youth Worker had been lost. The unsubstantiated masturbation "programme" allegation was noted but did not affect the overall outcome given the breadth of other findings.

9. Remedies (reinstatement, compensation, lost wages) — Status: Not reached (para [158]).

Having found all grievance claims unsuccessful, the Authority expressly declined to consider any of the remedies sought by Mr Caldwell, including permanent reinstatement, compensation for personal grievance, and lost wages.

10. Contribution under s 124 of the Act — Status: Not reached (para [158]).

The question of whether any remedy should be reduced due to Mr Caldwell's contributory conduct did not arise because no grievance was upheld and no remedy was ordered.

11. Costs — Status: Reserved (paras [159]-[161]).

Costs were reserved. The parties were encouraged to resolve costs between themselves. If not resolved, OT may file a costs memorandum within 28 days of the determination, with Mr Caldwell having 14 days to reply. The Authority noted it would apply the usual daily tariff basis unless circumstances warranted adjustment.

All claims were dismissed; the unjustified dismissal grievance and all three disadvantage grievances were unsuccessful, and no remedies were ordered.

None ordered. Remedies were not considered because all claims failed. Costs are reserved pending agreement between the parties or a further determination.

Natalie Butler-Smith, a part-time permanent farm assistant, brought personal grievance claims against her employer, the DG and DV Cavey Partnership, following her dismissal in February 2024 — just days before she was due to return from parental leave. The key legal questions concerned whether her dismissal was unjustified, whether she was owed unpaid wages, notice pay, and compensation for humiliation, and whether a penalty should be imposed for failure to provide wage and time records. The Authority upheld the unjustified dismissal claim and awarded compensation, lost wages, unpaid wages, and notice pay, but declined to impose a penalty without further explanation from the Partnership.

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

Applicant: William Lynch, advocate for the Applicant
Respondent: No appearance

Ms 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 her parental leave, she attended the workplace approximately twice a month to assist with paperwork — approximately two hours per month — for which she was not paid. Her confirmed return date was 19 February 2024, but on 13 February 2024, she was called to a meeting and verbally dismissed on the basis that having a baby on the farm created health and safety issues; written confirmation followed on 20 February 2024. The Partnership did not appear at the investigation meeting, did not engage in the proceedings, and failed to provide wage and time records despite Ms Butler-Smith's request. Ms Butler-Smith gave evidence of the significant emotional, financial, and parenting impact of the unexpected dismissal while she was in a vulnerable state as a first-time mother.

1. Whether the Authority should proceed in the absence of the Respondent — Status: Established (no specific paragraph numbers in the document).

The Authority considered whether to proceed without the Partnership's attendance. Satisfied that the Partnership was aware of the investigation meeting and had been sent an audiovisual link, the Authority adjourned for 15 minutes to allow the Partnership to contact it; when no contact was made, the Authority determined it was appropriate to proceed in the Partnership's absence.

2. Whether Ms Butler-Smith's dismissal was unjustified — Status: Established (no specific paragraph numbers in the document).

The applicable test under the Employment Relations Act 2000 requires an employer to have acted as a fair and reasonable employer could in the circumstances, including consulting the employee before reaching a decision. In the absence of any response or justification from the Partnership, the Authority accepted Ms Butler-Smith's uncontested evidence. The Authority found the dismissal unjustified: there was no consultation with Ms Butler-Smith, merely a blunt determination that having a baby on the farm was unsafe, with no opportunity to explore alternatives or the validity of that conclusion.

3. Whether Ms Butler-Smith contributed to her personal grievance (s 124, Employment Relations Act 2000) — Status: Dismissed (no specific paragraph numbers in the document).

Section 124 requires the Authority to consider whether the employee contributed in any blameworthy way to the situation giving rise to the personal grievance. On the uncontested evidence, the Authority found Ms Butler-Smith did not contribute in any blameworthy way to her dismissal, and accordingly no reduction to remedies was applied.

4. Whether Ms Butler-Smith was entitled to unpaid wages for attendance at the workplace during parental leave — Status: Established (no specific paragraph numbers in the document).

Ms Butler-Smith claimed $192.00 for approximately two hours per month of paperwork work performed at the workplace over four months during parental leave for which she was not paid. Because the Partnership failed to provide wage and time records despite request, the Authority accepted Ms Butler-Smith's evidence and awarded the claimed sum in full.

5. Whether Ms Butler-Smith was entitled to lost wages for the 13-week period of unemployment following dismissal — Status: Established (no specific paragraph numbers in the document).

Ms Butler-Smith claimed $9,360.00 based on an hourly rate of $24/hour at an average of 30 hours per week for the 13 weeks she was unable to find employment following dismissal. With no contradicting evidence from the Partnership and no records provided, the Authority accepted her evidence and awarded the full claimed amount.

6. Whether Ms Butler-Smith was entitled to payment in lieu of notice — Status: Established (no specific paragraph numbers in the document).

Ms Butler-Smith's Employment Agreement provided for a four-week notice period. The Partnership dismissed her without honouring this entitlement. The Authority accepted her claim of $2,880.00 representing four weeks' pay and awarded the full sum.

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 Employment Relations Act 2000 — Status: Partially established (no specific paragraph numbers in the document).

Section 123(1)(c)(i) permits compensation for humiliation, loss of dignity, and injury to feelings arising from an unjustified dismissal. Ms Butler-Smith sought $25,000.00. The Authority found her evidence of emotional impact to be poignant, noting the significant effect of an unexpected dismissal on a first-time mother in a vulnerable state, affecting her parenting and sense of wellbeing. The Authority awarded $20,000.00 (below the claimed $25,000.00), reflecting its assessment of the seriousness of the impact.

8. Whether a penalty should be imposed for breach of s 130 of the Employment Relations Act 2000 (failure to provide wage and time and leave records) — Status: Dismissed (no specific paragraph numbers in the document).

Section 130 of the Act requires employers to maintain and provide wage and time records. Ms Butler-Smith sought a penalty against the Partnership for its failure to provide those records. The Authority declined to impose a penalty in the absence of the Partnership, stating it was reluctant to do so without further explanation, leaving open the possibility that the issue may be revisited.

9. Costs — Status: Reserved (no specific paragraph numbers in the document).

The Authority reserved costs and encouraged the parties to resolve the issue between themselves. If unresolved, Ms Butler-Smith may file a memorandum on costs within 28 days; the Partnership then has 14 days to reply. The Authority indicated it would apply its usual daily tariff basis if called upon to determine costs.

The unjustified dismissal claim was upheld, with compensation, lost wages, unpaid wages, and notice pay awarded in full or near-full; the penalty claim under s 130 was declined without further explanation.

- Unpaid wages (work during parental leave): $192.00
- Lost wages (13 weeks' unemployment): $9,360.00
- Notice pay (4-week contractual notice period): $2,880.00
- Compensation for humiliation, loss of dignity, and injury to feelings (s 123(1)(c)(i)): $20,000.00
- Total ordered: $32,432.00, payable within 28 days
- Penalty (s 130 breach): None ordered (declined without further explanation; not foreclosed)
- Costs: Reserved

Raheel Reddy, a barber employed by Studio Image Limited from May 2023 to September 2024, claimed unjustified dismissal and breach of good faith after his employment was terminated by text message. The key legal questions were whether a dismissal occurred (as opposed to a resignation), whether it was unjustified, whether a good faith penalty was warranted, and what remedies should be awarded after any contributory conduct reduction. The Authority found Mr Reddy was unjustifiably dismissed and awarded lost wages and compensation for humiliation, reduced by 20% for contributory conduct, but declined to impose a good faith penalty.

Applicant: Raheel Reddy (employee/barber)
Respondent: Studio Image Limited (employer)

Applicant: Hayley Johnson (advocate)
Respondent: Sidhant Thapa (self-represented — sole director of the respondent)

Mr Reddy was employed as a barber at Studio Image's Auckland barbershop from 26 May 2023 until 17 September 2024. On 17 September 2024, Mr Reddy texted the director, Mr Thapa, to say he would be late arriving as he was viewing a replacement car following a motor vehicle accident the prior week; he later advised he would arrive by 1:30 pm. Before he arrived, Mr Thapa sent him a text message paying out his remaining leave, instructing him to collect his tools by the next day, and wishing him well — effectively dismissing him by text. Studio Image contended Mr Reddy had resigned or that his conduct (persistent lateness and poor attendance) justified ending the relationship, and sought to introduce post-employment video evidence and client statements, which the Authority rejected as irrelevant. Mr Reddy acknowledged he had previously received warnings for punctuality and attendance issues, and on the day in question was late to work. Mr Reddy raised claims for unjustified dismissal remedies, a good faith penalty, and costs; he withdrew earlier claims for penalties under s 130 of the Employment Relations Act 2000, s 4 of the Wages Protection Act 1983, and s 27 of the Holidays Act 2003 during the investigation meeting.

1. Whether a dismissal (rather than resignation) occurred — Status: Established (paras [22]-[31]).

The Authority applied the established legal principle that a dismissal occurs where there is a "sending away" of an employee at the employer's initiative, citing Wellington, Taranaki and Marlborough clerical Etc IUOW v Greenwich (1983). Despite Studio Image's contention that Mr Reddy resigned, the Authority found Mr Thapa's text messages — paying out accrued leave, instructing collection of tools by the next day, and expressing that he no longer wanted Mr Reddy there — were all consistent with a sending away. Post-employment video evidence and unsolicited client statements were rejected as irrelevant to how the relationship ended. The Authority accepted Mr Reddy's evidence that he was dismissed on 17 September 2024.

2. Whether the dismissal was unjustified under s 103A of the Act — Status: Established (paras [32]-[38]).

The Authority applied the s 103A(2) test of whether a fair and reasonable employer could have acted as Studio Image did in all the circumstances. Studio Image failed every minimum procedural fairness requirement under s 103A(3): it did not sufficiently investigate its concerns (s 103A(3)(a)), did not raise concerns with Mr Reddy before dismissing him (s 103A(3)(b)), did not give him any opportunity to respond (s 103A(3)(c)), and deprived him of any chance to be heard (s 103A(3)(d)). The dismissal was effected summarily by text message without any process. The Authority also found a breach of the good faith obligation under s 4(1A)(c) to provide access to relevant information and an opportunity to comment. The dismissal was found to be unjustified.

3. Whether Mr Reddy was entitled to lost wages under ss 123(1)(b) and 128 of the Act — Status: Partially established (paras [40]-[46]).

Under s 123(1)(b) and s 128, an employee is entitled to reimbursement of lost remuneration, subject to a default cap of three months 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, so the Authority declined to award beyond that period. The Authority also found that Mr Reddy's claimed 38.5-hour working week was not supported by his payslips, which showed an average of 36.21 hours per week in his final three months. Lost wages were awarded on that corrected basis at $30.00 per hour for 13 weeks, totalling $14,121.90 (gross).

4. Whether Mr Reddy was entitled to compensation for humiliation, loss of dignity and injury to feelings under s 123(1)(c)(i) — Status: Established (paras [47]-[51]).

The Authority found Mr Reddy suffered harm under each head in s 123(1)(c)(i), including stress, uncertainty, and emotional distress from feeling his commitment was unrecognised. Applying the principle from Wikaira v Chief Executive of the Department of Corrections [2016] NZEmpC 175 that awards should be fair, realistic, and not miserly, and having regard to comparable cases, the Authority assessed compensation at $13,500 before the contribution reduction.

5. Whether Studio Image breached the duty of good faith warranting a penalty under s 4A of the Act — Status: Dismissed (paras [52]-[55]).

The Authority acknowledged aspects of Studio Image's conduct may have fallen short of its good faith obligations, particularly its duty under s 4(1A)(b) to be active and constructive in maintaining a productive employment relationship. However, the threshold for a s 4A 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)). The Authority exercised its discretion to decline a penalty, satisfied that the personal grievance remedies already awarded adequately addressed the good faith failures.

6. Whether Mr Reddy's contributory conduct should reduce his remedies under s 124 of the Act — Status: Established (paras [56]-[61]).

The Authority applied the four-step test from Maddigan v Director-General of Conservation [2019] NZEmpC 190, finding Mr Reddy's conduct (persistent punctuality and attendance issues, including on the day of dismissal, and prior warnings for the same conduct) was blameworthy and contributed to the situation giving rise to the dismissal. The Authority assessed the conduct as not in the upper range of blameworthiness and applied a 20% reduction, confined to the s 123(1)(c)(i) compensation award only (reducing it from $13,500 to $10,800), not to the lost wages award.

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 awarded — Status: Not reached (para [12]).

Mr Reddy withdrew these claims during the investigation meeting and the Authority recorded the withdrawal for completeness. No determination was made on their merits.

8. Costs — Status: Not reached/Reserved (paras [63]-[65]).

The Authority reserved costs and encouraged the parties to resolve the issue themselves. If unresolved, Mr Reddy may lodge a costs memorandum within 28 days, with Studio Image having 14 days to reply. The Authority indicated it would apply its usual daily tariff basis unless circumstances warrant adjustment.

The claim was partially upheld: unjustified dismissal established, lost wages and compensation awarded (reduced by 20% contribution on the latter), but the good faith penalty was declined and the s 130/Wages Protection Act/Holidays Act claims were withdrawn.

Lost wages: $14,121.90 (gross), being 36.21 hours/week × $30.00/hour × 13 weeks, under ss 123(1)(b) and 128 of the Act, plus 8% holiday pay and KiwiSaver compliance if applicable.
Compensation (humiliation, loss of dignity, injury to feelings): $10,800 (being $13,500 reduced by 20% for contributory conduct) under s 123(1)(c)(i) of the Act.
Good faith penalty: None ordered.
Costs: Reserved — parties to negotiate; if unresolved, Mr Reddy to file memorandum within 28 days of determination date.
All amounts payable within 28 days of the written record of the oral determination (26 May 2026).

Gina Thompson, a Customer Services Officer employed by the Inland Revenue Department (IRD), was dismissed on 23 December 2025 for serious misconduct after accessing a taxpayer's account without a valid business reason, in contravention of an explicit instruction not to do so. Ms Thompson sought interim reinstatement under s 127 of the Employment Relations Act 2000, claiming unjustifiable dismissal. The Authority found she had a weak arguable case for permanent reinstatement and that the balance of convenience and overall justice favoured declining the interim reinstatement application.

Applicant: Gina Thompson (employee, Customer Services Officer)
Respondent: The Chief Executive of the Inland Revenue Department (employer)

Applicant: Peter Cranney and Duncan Allan, counsel for the Applicant
Respondent: Susan Hornsby-Geluk, counsel for the Respondent

Ms Thompson had six years' service with IRD as a Customer Services Officer in the Customer and Compliance Services – Families segment, with no prior disciplinary or performance issues. On 24 October 2025, IRD's Domain Specialist sent an email to team leads instructing staff not to access the account of a specific taxpayer (Taxpayer A); this was forwarded to Ms Thompson at 2.44 p.m., and she accessed Taxpayer A's account two minutes later at 2.46 p.m. Ms Thompson's explanation was that she had not fully read the email before accessing the account, that she wanted to check whether she had previously worked on the account, and that she was preparing herself in case Taxpayer A called. IRD found her explanation not credible, noting that she would have had to scroll past the explicit instruction to find Taxpayer A's details, and that she also failed to report her access to a leader even after a further reminder email on 28 October 2025. Following an investigation process that included a meeting on 27 November 2025, written submissions from Ms Thompson and her union (the PSA), and a preliminary decision letter, IRD dismissed Ms Thompson on 23 December 2025 for serious misconduct. Ms Thompson brought a personal grievance for unjustifiable dismissal seeking both interim and permanent reinstatement; mediation did not resolve the matter.

1. Whether the Employment Relations Amendment Act 2026 affects the availability of reinstatement as a remedy in this case — Status: Not reached (paras [15]-[17]).

IRD raised as a preliminary issue whether the Employment Relations Amendment Act 2026 precluded reinstatement as a remedy for Ms Thompson. The Authority declined to address this question in the interim determination on two grounds: first, the urgency of the interim reinstatement application precluded a carefully considered determination; and second, counsel for IRD conceded it was best addressed at the substantive hearing (or by the Employment Court on challenge). The issue was expressly reserved for the substantive determination.

2. Whether Ms Thompson has established a serious question (arguable case) of unjustifiable dismissal — Status: Established (paras [48]-[58]).

The applicable test, drawn from Brooks Homes Ltd v NZ Tax Refunds Ltd [2013] NZSC 60 and Western Bay of Plenty District Council v McInnes [2016] NZEmpC 36, requires the applicant to show the claim is not frivolous or vexatious — a deliberately low threshold. The Authority applied this threshold to the untested affidavit evidence, noting Ms Thompson's argument that the access was minimal, she lacked bad motive, had six years' service and no prior issues, and that dismissal was disproportionate. The Authority found that, despite IRD's contrary submissions about her credibility and the seriousness of the breach, Ms Thompson met the low threshold and had an arguable case for unjustifiable dismissal.

3. Whether Ms Thompson has established a serious question (arguable case) for permanent reinstatement — Status: Dismissed (paras [59]-[68]).

Under s 125(2) of the Act, reinstatement is the primary remedy and must be both practicable and reasonable, as explained in Hong v Auckland Transport [2019] NZEmpC 54. The Authority applied Humphrey v Canterbury District Health Board [2021] NZEmpC 59, which confirmed that establishing an arguable case for unjustifiable dismissal and for permanent reinstatement are two separate sub-issues. On the untested evidence, the Authority found that Ms Thompson had only a "weak arguable case" for permanent reinstatement, citing IRD's concerns about destroyed trust and confidence, her ongoing access to sensitive taxpayer information with limited monitoring, the statutory obligations under the Tax Administration Act 1994, her failure to report her access, and her continued assertion that her conduct was legitimate. Accordingly, the Authority found she did not have a strongly arguable case for interim reinstatement.

4. Whether the balance of convenience favours granting interim reinstatement — Status: Dismissed (paras [69]-[77]).

The Authority applied the principle from X v Y Limited [1992] 1 ERNZ 863, requiring it to weigh the detriment to each party. Ms Thompson argued severe financial hardship, emotional stress, difficulty finding new employment, and the constraint of Workforce Assurance Standards for three years. IRD argued that garden leave or return to payroll would be inappropriate given the risk Ms Thompson might be unable to repay if the substantive claim failed, and that government cost-saving obligations made such an order irresponsible. The Authority, balancing these considerations, found the balance of convenience favoured not reinstating Ms Thompson on an interim basis.

5. Whether the overall justice of the case favours granting interim reinstatement — Status: Dismissed (paras [78]-[83]).

The overall justice assessment operates as a global check following analysis of the serious question and balance of convenience, as described by the Court of Appeal in NZ Tax Refunds Ltd v Brooks Homes Limited [2013] NZCA 90 at [47]. Ms Thompson submitted there was no improper motive and consequences were severe for her. IRD submitted that trust and confidence had been fundamentally destroyed given her access to vast amounts of sensitive taxpayer information with limited monitoring. The Authority concluded that overall justice subsisted in declining the application for interim reinstatement.

6. Costs — Status: Not reached (para [86]).

Costs were reserved pending the outcome of the substantive investigation meeting or until the matter otherwise ceased to be before the Authority.

The application for interim reinstatement was dismissed; the substantive claim of unjustifiable dismissal remains to be determined at a hearing scheduled for October.

None ordered at this stage. Interim reinstatement was declined. Costs reserved pending the substantive investigation. A case management conference is to be held to progress the matter to a substantive investigation scheduled for October.

John Keogh, an employee of the Civil Aviation Authority (CAA) whose Principal Advisor Investigations role was disestablished effective 1 June 2026, applied for interim reinstatement while his substantive personal grievance claims (unjustified dismissal, unjustified disadvantage, and breach of good faith) are investigated. The key legal questions were whether there was an arguable case for unjustified dismissal or disadvantage, whether there was an arguable case for permanent reinstatement, and whether the balance of convenience and overall justice supported interim reinstatement. The application for interim reinstatement was declined on all grounds.

Applicant: John Keogh (employee)
Respondent: Civil Aviation Authority (employer)

Applicant: Self-represented
Respondent: Bronwyn Heenan and Matthew Maitland, counsel for the Respondent

Mr Keogh commenced employment with the CAA in 2018 and held the role of Principal Advisor Investigations until it was disestablished effective 1 June 2026 following a restructure driven by a new organisational strategy requiring cost efficiencies and changes to the investigations team's operating context. On 11 March 2026, Mr Keogh was issued a consultation letter outlining a proposal to disestablish his role; he provided written feedback raising concerns about the absence of a formal workload assessment, the short feedback period, and the lack of proper justification, but on 1 April 2026 CAA confirmed the disestablishment. Mr Keogh raised a personal grievance on 1 April 2026, alleging unjustifiable action and breach of good faith, and filed a Statement of Problem on 8 April 2026 seeking interim and permanent reinstatement. Following the disestablishment decision, CAA offered two redeployment options; Mr Keogh accepted the permanent Queenstown Investigator role on 25 May 2026 at the same salary, with a three-month transition period. CAA argued that Mr Keogh's acceptance of permanent redeployment into an equivalent role rendered any reinstatement claim nugatory, while Mr Keogh maintained his acceptance of redeployment did not extinguish his grievance or his right to reinstatement.

1. Whether there is an arguable case for unjustified dismissal — Status: Dismissed (paras [33]-[40]).

The applicable test for interim reinstatement requires the applicant to establish a serious (arguable) question to be tried. The Authority assessed the untested affidavit evidence and noted that CAA had undertaken an external review, adopted a new organisational strategy, carried out a consultation process, and offered redeployment options. Critically, Mr Keogh's acceptance of permanent redeployment into what appeared on the untested evidence to be a suitable alternative role at the same pay significantly weakened the unjustified dismissal claim, as his employment was ongoing. The Authority was not persuaded that a strongly arguable case of unjustified dismissal existed at this interim stage.

2. Whether there is an arguable case for unjustified disadvantage — Status: Dismissed (paras [41]-[45]).

Mr Keogh argued there was a serious question about whether CAA sufficiently evidenced its business reasons, conducted genuine consultation, and whether there was predetermination, relying in part on outstanding Official Information Act and Privacy Act requests. The Authority acknowledged the information requests could proceed independently and be raised at the substantive hearing but found that, on the untested evidence, Mr Keogh had not suffered a disadvantage for interim purposes given he retained the same salary, status, and ongoing employment through redeployment. The Authority was not persuaded that an arguable case of unjustified disadvantage existed for the purposes of the interim application.

3. Whether there is an arguable case for permanent reinstatement — Status: Dismissed (paras [46]-[50]).

Even if an arguable case for dismissal or disadvantage existed, the applicant must also demonstrate an arguable case for permanent reinstatement. CAA argued there was no basis for reinstatement because the role was disestablished for genuine operational reasons and Mr Keogh had voluntarily accepted a suitable alternative role, rendering reinstatement nugatory. The Authority found that Mr Keogh's redeployment into what appeared to be an equivalent role in pay, expertise, and standing — absent any dismissal — counted against interim reinstatement, and held there was no arguable case for permanent reinstatement on the untested evidence.

4. Whether the balance of convenience supports interim reinstatement — Status: Dismissed (paras [51]-[59]).

This required weighing the impact on each party of granting or refusing interim reinstatement, and whether adequate alternative remedies existed. Mr Keogh argued he faced loss of a senior permanent role, erosion of reinstatement remedies, and pressure to relocate to Queenstown, while CAA argued reinstating him would require re-establishing a cost-ineffective structure and disrupting other staff, and that monetary remedies would be adequate if he succeeded substantively. The Authority found no significant detriment to Mr Keogh if interim reinstatement was refused given his ongoing equivalent employment, accepted that reinstating him would burden CAA's operations, and concluded that monetary remedies would be more appropriate if Mr Keogh ultimately succeeded. The balance of convenience favoured CAA.

5. Whether the overall justice of the case supports interim reinstatement — Status: Dismissed (paras [60]-[63]).

The overall justice assessment functions as a final check requiring the Authority to step back and consider the strengths of each party's case, citing NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90. CAA submitted that the factual matrix had materially changed since the application was filed (Mr Keogh having accepted permanent redeployment), that he would suffer no prejudice at the substantive hearing, and that reinstating him to a disestablished role in a flawed structure served no useful purpose. The Authority agreed, finding that the overall justice favoured CAA and that interim reinstatement should not be granted.

6. Whether the substantive claims (unjustified dismissal, unjustified disadvantage, breach of good faith, and other remedies) should proceed — Status: Established (para [65]).

The Authority expressly confirmed that Mr Keogh retains the right to have his substantive claims heard and determined, including all other remedies sought. The Authority directed that the substantive matters would be progressed toward an investigation meeting as soon as practicable. No findings on the merits of the substantive claims were made in this determination.

7. Costs — Status: Reserved (paras [66]-[67]).

The Authority reserved costs for determination following the substantive investigation meeting or until the matter otherwise ceases to be before the Authority. The parties were encouraged to resolve costs between themselves, with the Authority indicating it would apply the standard daily tariff basis if required to determine costs, subject to any upward or downward adjustment.

Mr Keogh's application for interim reinstatement was dismissed in its entirety; the substantive claims are to proceed to a future investigation meeting.

None ordered at this stage. Interim reinstatement declined. Substantive claims (unjustified dismissal, unjustified disadvantage, breach of good faith, and associated remedies including permanent reinstatement) remain live and will proceed to a substantive investigation meeting. Costs reserved pending the outcome of the substantive hearing or further order.

Nisha Thakkar, a fixed-term full-time team member employed by LS Travel Retail New Zealand Limited at Auckland Airport, pursued personal grievances for unjustified disadvantage and unjustified constructive dismissal, alleging LS Travel unilaterally varied her work hours and failed to provide guaranteed minimum hours under her individual employment agreement. The key legal questions were whether the s 103(3) jurisdictional bar applied, how the hours of work provisions in the IEA should be interpreted, whether the employer's actions were justified, and whether a penalty claim for breach of good faith was brought within time. The unjustified disadvantage grievances were upheld and compensation and lost wages ordered, but the constructive dismissal claim and the penalty claim were both dismissed.

Applicant: Nisha Thakkar (employee)
Respondent: LS Travel Retail New Zealand Limited (employer)

Applicant: Ruth Katsui, representative for the applicant
Respondent: Anne Wilson, counsel for the respondent

Ms Thakkar was employed as a fixed-term full-time team member in LS Travel's Relay stores at Auckland Airport from 27 November 2023, with her fixed term linked to her work visa expiring 21 September 2024. Her individual employment agreement (IEA) specified guaranteed hours of 40 hours per week and set out "Times and Days of Work" in Appendix A as Tuesday to Saturday from 12:30pm to 20:30pm, along with availability hours of 45. Shortly before Ms Thakkar commenced, LS Travel's arrivals store moved to 24/7 operations on direction from Auckland Airport, resulting in management rostering Ms Thakkar onto early morning and late-night shifts outside her stated availability. Ms Thakkar repeatedly objected to those shifts, LS Travel offered her a part-time contract as an alternative, and from March 2024 undertook a consultation process culminating in a proposed roster change to a 4am–12:30pm shift from 8 April 2024. Ms Thakkar stopped attending work after 6 April 2024, raised an unjustified disadvantage grievance in May 2024, attended unsuccessful mediation in May 2024, and on 20 June 2024 gave four weeks' notice of resignation after LS Travel proposed interim arrangements. LS Travel argued its rostering was contractually permitted, that the disadvantage claims were barred by s 103(3) as deriving solely from contractual interpretation, that Ms Thakkar resigned prematurely, and that her penalty claim was out of time.

1. Whether the unjustified disadvantage claims are precluded by the s 103(3) jurisdictional bar — Status: Dismissed (paras [34]-[37]).

Section 103(3) of the Employment Relations Act 2000 bars unjustified disadvantage claims that derive solely from the interpretation, application, or operation of an employment agreement. Applying the Court of Appeal's decision in Breen v Prime Resources Company Limited [2026] NZCA 33, the Authority held the bar is not triggered where there is "something more" than just contractual interpretation. The Authority identified multiple additional actions going beyond mere interpretation, including LS Travel's rostering decisions, alleged preferential allocation of shifts to other staff, pre-employment representations, attempts to vary the IEA by offering part-time employment, and the consultation process. Accordingly, the jurisdictional bar did not apply and the claims proceeded as personal grievances.

2. Correct interpretation of the hours of work provisions in the IEA — Status: Established (paras [38]-[45]).

The Authority examined clauses 7.1, 7.2, 7.3, and 7.5 of the IEA and Appendix A, which specified Times and Days of Work as Tuesday to Saturday 12:30pm–20:30pm (40 hours) and Availability Hours of 45. LS Travel argued clause 7.5 (requiring Ms Thakkar to work rostered shifts) gave it full flexibility to roster any hours, but the Authority found this reading was inconsistent with the existence of the Availability Hours provision and the Times and Days of Work. Applying the contra proferentem principle (the drafter's ambiguity construed against LS Travel) and contextual background including pre-employment emails and the recruitment process, the Authority found the Times and Days of Work indicated when guaranteed hours would be provided, and the 45 availability hours related to additional shifts only. Ms Thakkar's interpretation was accepted as the correct one.

3. Whether Ms Thakkar established a personal grievance for unjustified disadvantage — unilateral variation of work hours — Status: Established (paras [48]-[55]).

Under s 103(1)(b), an unjustified disadvantage grievance requires the employer to have taken an unjustified action that disadvantaged the employee's employment or a condition of it. The Authority found Ms Thakkar was clearly disadvantaged by being rostered outside her Times and Days of Work, causing loss of wages and financial and mental stress. LS Travel could not justify its actions on the basis of a genuinely held contractual interpretation (as its own conduct — including offering a part-time contract and conducting a formal consultation process — was inconsistent with that interpretation being genuinely held). The Authority also found undisclosed performance concerns were shared with Duty-Free managers to block a transfer, and that other casual/part-time staff received afternoon shifts, further undermining LS Travel's justification. This grievance was established.

4. Whether Ms Thakkar established a personal grievance for unjustified disadvantage — failure to provide guaranteed minimum hours — Status: Established (paras [48]-[55]).

This was addressed as part of the same unjustified disadvantage assessment as Issue 3 above. The Authority was satisfied Ms Thakkar was not provided her guaranteed 40 hours during her Times and Days of Work, and LS Travel did not comply with its consultation obligations under clause 7.3 of the IEA prior to March 2024 (e.g. changing her shifts without her feedback or consent and then offering only a part-time alternative). The grievance was established on this ground also.

5. Whether Ms Thakkar was unjustifiably constructively dismissed — Status: Dismissed (paras [56]-[61]).

Constructive dismissal requires the employer's actions or inaction to have left the employee with no option but to resign, assessed against three non-exhaustive categories from Auckland Shop Employees v Woolworths (NZ) Ltd [1985] 2 NZLR 372. The Authority was satisfied that LS Travel's actions following the March 2024 consultation process were what a fair and reasonable employer could have done: clause 7.3 permitted a roster change on two weeks' written notice after consultation, the consultation was not found to be predetermined, and LS Travel's letter of 17 June 2024 offered to explore interim arrangements. The Authority held Ms Thakkar's resignation was premature — she resigned before engaging with the interim proposal — and she was not constructively dismissed.

6. Whether the penalty claim was brought within time under s 135(5) of the Act — Status: Dismissed (paras [66]-[68]).

Section 135(5) requires a penalty action to be commenced within 12 months of when the cause of action first became known or ought reasonably to have been known. The original statement of problem (filed 19 August 2024) raised a disadvantage grievance mentioning good faith but did not seek penalties; the penalty claim was not added until 15 August 2025, more than 12 months after the alleged breaches occurred during Ms Thakkar's employment (which ended 18 July 2024). The penalty claim was therefore out of time and declined.

7. Whether LS Travel breached good faith obligations under s 4A of the Act warranting a penalty — Status: Not reached/Dismissed (para [68]).

Having found the penalty claim was out of time, the Authority did not need to reach the merits. However, it stated in any event it would not have been satisfied on the evidence that the employer's conduct warranted a penalty under s 4A of the Act.

8. Whether remedies should be reduced for contributory conduct — Status: Not reached (para [62] and context).

LS Travel raised contribution as an issue if remedies were awarded. The Authority did not apply any reduction for contribution; no explicit finding on contribution was made and no reduction was applied to the awards.

9. Quantum of compensation for humiliation, loss of dignity, and injury to feelings — Status: Established (para [64]).

Under s 123(1)(c)(i) of the Act, the Authority awarded a global sum of $8,000 for humiliation and injury to feelings caused by the unjustified disadvantage grievances. The Authority noted that while Ms Thakkar described mental and emotional distress towards the end of and after employment, that distress was not wholly attributable to the established grievances and was taken into account in setting the global figure.

10. Quantum of lost wages — Status: Established (para [65]).

Under s 123(1)(b) of the Act, the Authority held Ms Thakkar was entitled to payment for any shortfall between 40 guaranteed hours and actual hours paid, for the period she was not rostered her guaranteed hours during her Times and Days of Work prior to 6 April 2024 (when consultation had been completed and notice given). Annual holiday pay of 8% was to be calculated on top of that amount. The precise dollar amount was not calculated in the determination and was left for the parties to calculate.

11. Costs — Status: Reserved (paras [70]-[72]).

Costs were reserved. The parties were encouraged to resolve costs between themselves. If unresolved, Ms Thakkar may file a costs memorandum within 28 days; LS Travel has 14 days to reply. The Authority indicated costs would ordinarily be assessed on the standard daily tariff basis.

The claim was partially upheld: the unjustified disadvantage grievances (unilateral variation and failure to provide guaranteed hours) were established and remedies ordered, but the unjustified constructive dismissal grievance was dismissed and the penalty claim was dismissed as out of time.

Compensation (hurt, humiliation, injury to feelings): $8,000 under s 123(1)(c)(i), payable within 21 days.
Lost wages: Amount not specified in the determination — to be calculated as the shortfall between guaranteed 40 hours and hours actually paid up to and including 5 April 2024, plus 8% annual holiday pay on that amount, under s 123(1)(b).
Reinstatement: No.
Penalties: None ordered (claim dismissed as out of time).
Costs: Reserved.

[COSTS ONLY]

Applicant: Volha Daniliuk (employee)
Respondent: For The Boys Limited (employer, First Respondent) and Big Black Sacks New Zealand Limited (Second Respondent)

Applicant: Aliaksandra Andreyuk, Advocate
Respondent: Jeremy Ansell and Nicole Meech, Counsel for First Respondent; No appearance for Second Respondent

This is a costs determination following an unsuccessful personal grievance claim by Ms Daniliuk against her former employers. Her unjustified dismissal, unjustified disadvantage, and good faith claims were all dismissed, with only a $2,000 Wages Protection Act penalty awarded against For The Boys Limited. The Authority ordered Ms Daniliuk to pay FTB $7,250 in costs, structured in two instalments to accommodate her financial circumstances.

Ms Daniliuk brought personal grievance and other employment claims against For The Boys Limited (FTB) and Big Black Sacks New Zealand Limited (BBS). In the substantive determination of 1 April 2026, all of her main claims (unjustified dismissal, unjustified disadvantage, and breach of good faith) were unsuccessful; only a $2,000 penalty for breach of the Wages Protection Act 1983 (for late payment of final accrued leave) was awarded. Costs were reserved in both the preliminary and substantive determinations. FTB made a Calderbank offer of over $40,000 on 18 December 2024 — well before the investigation meeting — which Ms Daniliuk declined. Ms Daniliuk filed a challenge to the Employment Court and sought a stay of the costs determination; she also submitted that costs should lie where they fall, citing hardship, FTB's inconsistent conduct, and the pending challenge. FTB sought the notional tariff plus uplifts totalling $11,500.

1. Costs — Stay or Deferral: Whether costs determination should be stayed pending Ms Daniliuk's challenge to the Employment Court — [Dismissed]
2. Costs Against BBS: Whether any costs order should be made in favour of BBS — [Dismissed]
3. Costs Following the Event: Whether costs should follow the event in favour of FTB as the substantially successful party — [Established]
4. Calderbank Offer Uplift: Whether FTB's Calderbank offer justifies an uplift above the notional daily tariff — [Partially established]
5. Uplift for Costs Submissions: Whether an additional uplift is warranted because Ms Daniliuk refused to agree to the tariff rate, requiring FTB to prepare costs submissions — [Dismissed]
6. Reduction for FTB's Conduct/Penalty: Whether FTB's shifting positions and the penalty finding justify a reduction in costs — [Dismissed]
7. Financial Hardship — Payment Terms: Whether Ms Daniliuk's financial circumstances should affect the quantum or payment terms of any costs order — [Partially established]

1. Costs — Stay or Deferral: Ms Daniliuk argued that proceeding with costs risked duplication and prejudice while her challenge was pending. The Authority rejected this, noting its usual practice is to determine costs so the Court has the determination before it. No risk of duplication or prejudice to Ms Daniliuk was identified, and the Authority proceeded to determine costs.
2. Costs Against BBS: BBS filed no costs submissions and had minimal engagement with the proceedings. The Authority agreed with Ms Daniliuk that no costs award against her in favour of BBS would sit comfortably with principle, and declined to make any such order.
3. Costs Following the Event: Applying the principles in PBO Limited v Da Cruz [2005] 1 ERNZ 808, the Authority confirmed that costs generally follow the event. As FTB successfully defended the substantive claims (aside from the penalty), costs should be awarded in its favour. The starting point was the notional daily tariff: a half-day for the preliminary matter and a full day for the substantive hearing, yielding a base of $6,250.
4. Calderbank Offer Uplift: FTB's Calderbank offer, made over a year before the investigation meeting and at a value substantially exceeding the penalty awarded, was found to be valid and reasonable. Ms Daniliuk's stated reasons for declining it (non-monetary concessions) were unsupported by evidence, and her counteroffer raised no non-financial concerns. Applying the approach in Thing v South Pole IP Holding [2025] NZERA and Knight v AsureQuality Ltd [2025] NZERA 833, the Authority awarded an uplift of $1,000 for non-acceptance of the Calderbank offer. The full $5,000 uplift sought by FTB was not granted.
5. Uplift for Costs Submissions: FTB sought a $2,000 uplift because Ms Daniliuk refused to agree to tariff costs, requiring preparation of submissions. The Authority did not award this uplift separately, treating it as absorbed within the overall modest costs award consistent with the principle that costs should not be punitive.
6. Reduction for FTB's Conduct/Penalty: Ms Daniliuk argued FTB's shifting positions and the penalty finding should reduce any costs award. Consistent with the approach in Thing v South Pole IP Holding, the Authority found the penalty was addressed through its imposition and was not a reason to reduce costs. Insufficient evidence was placed before the Authority to justify a reduction based on FTB's alleged conduct.
7. Financial Hardship — Payment Terms: While hardship did not reduce the quantum of the costs award, the Authority accepted Ms Daniliuk's affidavit evidence of her financial circumstances and structured payment in two equal instalments of $3,625 each, due within 28 and 60 days of the determination respectively.

The costs application was partially upheld: Ms Daniliuk was ordered to pay FTB $7,250 in costs (base tariff plus a $1,000 Calderbank uplift); no costs order was made in favour of BBS.

Costs ordered against Applicant (Ms Daniliuk) in favour of First Respondent (FTB): $7,250, payable in two equal instalments of $3,625 — first instalment within 28 days, second within 60 days of the determination.
No costs order made in favour of Second Respondent (BBS).

Applicant: Phil Jacklin (employee)
Respondent: Planit Software Testing Limited (employer)

Applicant: Rachel Burt, counsel for the Applicant
Respondent: Peter Kiely & Anthony Kamphorst, counsel for the Respondent

Phil Jacklin resigned from his role as General Manager Central with Planit Software Testing Limited in September 2024, claiming constructive dismissal arising from Planit's failure to set KPIs and pay a short-term incentive (STI) bonus under clause 6.2 of his Employment Agreement. The Authority found that Mr Jacklin had misread the contractual provisions — the bonus was discretionary, annual (not quarterly), and up to 25% (not guaranteed) — and therefore his constructive dismissal claim failed. However, the Authority found Planit did breach an express contractual term by failing to provide KPIs and eligible amounts at the beginning of the financial year, constituting an unjustified disadvantage, and awarded $10,000 compensation for humiliation, loss of dignity, and injury to feelings.

Phil Jacklin was engaged as General Manager Central by Planit Software Testing Limited in November 2023, commencing employment on 22 January 2024, at a base salary of $306,000. His Employment Agreement (clause 6.2) included eligibility for an annual short-term incentive bonus of up to 25% of annual salary, with KPIs and eligible amounts to be set at the beginning of each financial year, and all bonuses expressly at the absolute discretion of the COO or CEO. Planit was undergoing a significant global restructure at the time Mr Jacklin commenced, which delayed the setting of KPIs and eligible amounts. Mr Jacklin repeatedly raised concerns from April 2024 onward about the non-provision of KPIs and the non-payment of a bonus he believed was payable quarterly; Planit's representatives acknowledged his requests but attributed delays to the restructure. On 26 September 2024, after returning from a preplanned holiday to find no resolution, Mr Jacklin resigned by email with immediate effect, citing material breach of contract; Planit responded the following day expressing a desire for him to remain, which Mr Jacklin declined. The parties disputed the interpretation of clause 6.2 — Mr Jacklin maintained it obligated Planit to pay a quarterly bonus of 25% if targets were met, while Planit maintained the bonus was discretionary, annual, and not guaranteed.

1. Meaning of Clause 6.2: What is the plain meaning of clause 6.2 of Mr Jacklin's Employment Agreement regarding the nature, amount, timing, and discretion of the STI bonus? — (Established: resolved in favour of Planit's interpretation)
2. Breach of Employment Agreement: Did Planit breach its contractual obligations to Mr Jacklin, and if so, how? — (Partially established: breach found only as to failure to provide KPIs and eligible amounts)
3. Constructive Dismissal: Was Planit's breach of duty sufficiently serious that it was reasonably foreseeable Mr Jacklin would resign, constituting unjustified constructive dismissal under the third category in Woolworths? — (Dismissed)
4. Unjustified Disadvantage: If Mr Jacklin was not constructively dismissed, was he disadvantaged in his employment by Planit's failure to provide KPIs and eligible amounts? — (Established)
5. Remedies: If Mr Jacklin was unjustifiably constructively dismissed or disadvantaged in his employment, is he entitled to the remedies sought (lost wages, humiliation/dignity/feelings compensation, bonus payment of $19,720)? — (Partially established: $10,000 awarded for disadvantage only; lost wages, bonus payment, and constructive dismissal-related compensation dismissed)
6. Penalties: Is there a basis to order penalties against Planit for breach of the Employment Agreement and/or breach of good faith? — (Dismissed)
7. Contributory Conduct: Should any remedy awarded be reduced under s 124 of the Act for blameworthy conduct by Mr Jacklin? — (Not reached)
8. Costs: Is either party entitled to an award of costs? — (Reserved)

1. Meaning of Clause 6.2: The Authority applied a plain reading of clause 6.2. It found that the bonus was expressly discretionary ("at the absolute discretion" of the COO or CEO), payable up to 25% (not guaranteed at 25%), and annual rather than quarterly. The Authority rejected Mr Jacklin's argument that pluralisation of "bonuses and incentives" in the clause implied quarterly payments, describing that interpretation as strained and inconsistent with the plain wording. Planit's interpretation was accepted.
2. Breach of Employment Agreement: The Authority found that clause 6.2 expressly required Planit to set KPIs and eligible amounts at the beginning of each financial year. Even on a liberal interpretation, Planit had not done so. While the restructure provided context for the delay, it did not excuse Planit from either providing the figures or clearly communicating to Mr Jacklin the reasons and likely effects of the delay. No breach was found in relation to non-payment of the bonus itself, given the discretionary nature of any payment.
3. Constructive Dismissal: The Authority applied the third Woolworths category — breach of duty leading to resignation — requiring the breach to be of sufficient seriousness that resignation was reasonably foreseeable. The Authority found that Mr Jacklin's belief about his entitlement to a quarterly mandatory bonus was based on a misreading of clause 6.2. Because his resignation was premised on an incorrect contractual interpretation, he failed to prove the resignation amounted to a dismissal. The claim of constructive dismissal was dismissed.
4. Unjustified Disadvantage: Applying the broad definition of "disadvantage" recognised in Wiles v Vice-Chancellor of the University of Auckland [2024] NZempC 123, the Authority found that Planit's failure to provide KPIs and eligible amounts at the beginning of the financial year, without adequately informing Mr Jacklin of the reasons, was a breach of an express contractual term that did disadvantage Mr Jacklin in his employment. The Authority accepted that this caused him genuine distress and uncertainty.
5. Remedies: Because constructive dismissal was not established, claims for lost wages, the Q1 bonus of $19,720, and the $50,000 humiliation award tied to unjustified dismissal were all dismissed. On the unjustified disadvantage finding, the Authority awarded $10,000 for humiliation, loss of dignity, and injury to feelings. No award was made for lost wages or the bonus payment.
6. Penalties: Although the Authority accepted that Planit's failure to provide KPIs had a negative effect on Mr Jacklin, it found that this harm was already remedied by the $10,000 compensation award. Imposing penalties in addition was found not appropriate in the circumstances, and both penalty claims (including for breach of good faith) were dismissed.
7. Contributory Conduct: The Authority did not reach this issue, as it arose only if a personal grievance remedy was awarded on the constructive dismissal claim. Given that the only remedy awarded related to unjustified disadvantage, and no explicit s 124 reduction was applied, the issue was effectively not engaged.
8. Costs: Costs were reserved. The parties were encouraged to resolve costs between themselves, with a process set out for lodging memoranda if agreement is not reached. The Authority indicated it would apply its usual daily tariff basis unless circumstances required adjustment.

The claim was partially upheld — the constructive dismissal claim and associated remedies were dismissed, but the unjustified disadvantage claim was established and Mr Jacklin was awarded $10,000 compensation.

Compensation for humiliation, loss of dignity, and injury to feelings (unjustified disadvantage): $10,000
Lost wages: None ordered
Bonus payment ($19,720): None ordered
Constructive dismissal compensation ($25,000 + $50,000): None ordered
Penalties: None ordered
Reinstatement: Not sought or ordered
Costs: Reserved
Payment due within 28 days of the date of determination.

[COSTS ONLY]

Applicant: Melissa Bowen (employee)
Respondent: Bank of New Zealand (employer)

Applicant: Michael O'Brien, counsel for the Applicant
Respondent: Philip Skelton KC, counsel for the Respondent

This is a costs determination arising from two unsuccessful applications by Ms Bowen to admit evidence from a July 2019 without prejudice meeting during the course of a broader employment relationship problem. Member Cheyne, who had separately handled the admissibility applications, determined that BNZ was the successful party on these interlocutory matters and ordered Ms Bowen to pay BNZ costs of $6,750.00, calculated using the daily tariff model with a 50% uplift applied to each application.

Ms Bowen brought an employment relationship problem against BNZ, which was investigated by Member van Keulen. Member Cheyne separately handled two admissibility applications made by Ms Bowen seeking to admit evidence of discussions at a July 2019 without prejudice meeting. Both applications were declined: the first by directions dated 28 March 2025 (made shortly before a scheduled investigation meeting on remedies), and the second by directions dated 9 January 2026 (which sought admission of the evidence for the purpose of Member van Keulen's costs consideration). BNZ successfully resisted both applications. The substantive determination found BNZ liable and Ms Bowen was awarded remedies, but BNZ was treated as the successful party for the purposes of these costs proceedings. The parties could not agree on costs, and Ms Bowen contended that no costs should be ordered due to her inability to pay.

1. Applicable Costs Model: Whether the daily tariff model or an alternative approach should apply to narrow preliminary/interlocutory admissibility matters — [Established (daily tariff applied)]
2. Costs Uplift: Whether a percentage uplift on the daily tariff was warranted given the circumstances of Ms Bowen's applications — [Established (50% uplift applied to both applications)]
3. Ability to Pay: Whether Ms Bowen's alleged inability to pay should reduce or extinguish any costs award — [Dismissed]

1. Applicable Costs Model: The Authority applied established principles including that costs generally follow the event, awards are modest, and the daily tariff model is the standard approach. Member Cheyne noted that an earlier admissibility dispute between the same parties had been resolved using the daily tariff approach, providing no sufficient reason to depart from it here. The first application was assessed at half the daily rate (using the first-day investigation meeting rate) as the steps involved were more limited than in the earlier matter. The second application was also assessed using the daily tariff model.
2. Costs Uplift: A 50% uplift was applied to both applications, consistent with the uplift applied in an earlier costs determination involving the same parties ([2022] NZERA 55), where Ms Bowen's approach had similarly been found to warrant an uplift. For the first application, the urgency forced on BNZ (requiring submissions on short notice to preserve scheduled investigation dates) and the need to instruct counsel were noted as relevant factors, though the Authority was careful not to characterise the timing as blameworthy. For the second application, a higher uplift was considered warranted because the application was wholly unmeritorious and largely attempted to relitigate earlier directions at a very late stage; however, less was required of BNZ to oppose it, and balancing these factors, the same dollar figure of $3,375.00 was fixed for each application.
3. Ability to Pay: Ms Bowen argued that no costs should be ordered as she had not worked since her dismissal, was unable to work, and was on a sickness benefit, attributing her financial position to BNZ's wrongful conduct. Member Cheyne noted that no information about Ms Bowen's overall financial position was provided, and that BNZ had already paid sums to Ms Bowen and into court under a consent judgment with an agreed off-setting arrangement in place. The Authority held it was not appropriate to adjust the costs assessment based on ability to pay.

The costs claim was upheld in favour of BNZ; Ms Bowen was ordered to pay costs of $6,750.00.

Costs: $6,750.00 payable by Ms Bowen to BNZ within 28 days of the determination (comprising $3,375.00 for the first admissibility application and $3,375.00 for the second admissibility application, each calculated at half the daily tariff rate with a 50% uplift).

[CONSENT]

Applicant: Linda Hamilton (employee)
Respondent: Hollyer Holdings Limited (employer)

Applicant: Luke Acland, counsel for the Applicant
Respondent: Jonny Sanders, counsel for the Respondent

Ms Hamilton brought a personal grievance claim of unjustified dismissal against Hollyer Holdings Limited. The employer admitted the dismissal was unjustified. The parties reached a confidential settlement and jointly requested the Authority issue a consent determination, making the settlement terms orders of the Authority.

Ms Hamilton was employed by Hollyer Holdings Limited and was dismissed in circumstances she considered unjustified. Hollyer Holdings Limited admitted that the dismissal was unjustified. The parties negotiated a resolution and entered into a confidential settlement agreement. They then jointly requested the Authority issue a consent determination to give the settlement terms the force of Authority orders. The contents of the settlement agreement are subject to a non-publication order pursuant to clause 10 of the Second Schedule of the Employment Relations Act 2000.

1. Unjustified Dismissal: Whether Ms Hamilton was unjustifiably dismissed — [Established (by admission)]
2. Non-Publication Order: Whether the terms of the settlement agreement should be subject to a non-publication order under clause 10 of the Second Schedule of the Employment Relations Act 2000 — [Established]

1. Unjustified Dismissal: Hollyer Holdings Limited admitted that the dismissal was unjustified. No contested hearing was required. The Authority accepted the admission and the parties' agreed resolution.
2. Non-Publication Order: Pursuant to clause 10 of the Second Schedule of the Employment Relations Act 2000, the Authority made a non-publication order covering the contents of the settlement agreement, consistent with the parties' request for confidentiality.

The claim was resolved by consent, with the employer admitting unjustified dismissal and the parties' confidential settlement agreement becoming orders of the Authority.

The specific terms of the remedy are confidential and subject to a non-publication order. The settlement agreement terms have been made orders of the Authority by consent. No publicly disclosed figures are available.