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LUO (employee) brought personal grievance claims against BAZ (her employer, a small online wholesaler) following the termination of her marketing role by way of redundancy in March 2024. The key legal questions were whether LUO was unjustifiably dismissed through a flawed restructure process, whether she was unjustifiably disadvantaged by bullying, and whether she was sexually harassed by a director at a Christmas party. The unjustified dismissal claim succeeded and compensation of $11,000 was awarded, but the disadvantage/bullying and sexual harassment claims were dismissed.

Applicant: LUO (employee, anonymised)
Respondent: BAZ (employer, small online wholesaler, anonymised)

Applicant: Matthew Hutcheson, counsel for the Applicant
Respondent: Angus Drumm, counsel for the Respondent

LUO commenced employment with BAZ on 15 August 2023 in a marketing role responsible for creating marketing material and maintaining BAZ's online presence. From mid-January 2024, LUO alleged that her duties were progressively reallocated to other team members, though BAZ said this was to assist with her workload rather than as a punitive measure. On 23 February 2024, BAZ notified employees of a proposed restructure via a brief email, followed by limited consultation meetings with no written proposal, no timeframe, and no explicit warning that LUO's specific role was at risk. On 19 March 2024, LUO was informed her position was made redundant effective 16 April 2024, and was invited to apply for a newly created role that LUO described as practically identical to her existing position; she did not apply and left employment on 20 March 2024. LUO also raised claims of bullying by the directors and sexual harassment by Mr G at a Christmas party on 16 December 2023; BAZ denied all claims. BAZ failed to actively engage with the Authority's process until after the first day of the investigation meeting.

1. Non-publication orders for both parties — Status: Established (paras [1]-[5]).

The Authority applied the two-step approach from MW v Spiga [2024] NZEmpC 147 and considered the principles from FMV v TZB [2021] NZSC 102, balancing open justice against the ends of justice. Weight was placed on LUO being a recent graduate at the start of her career, the personal impact on her, the small business nature of BAZ, the absence of significant public interest, and the potential for adverse consequences from the nature of one claim. The Authority extended anonymisation to BAZ as well, notwithstanding that LUO did not seek it for BAZ, on the basis that equity required it and to give BAZ an opportunity to review its practices. Non-publication was granted for both parties and all witnesses.

2. Whether there was a genuine business reason for the restructure — Status: Established (paras [27]-[31]).

The Authority applied the s 103A justification test, noting from Grace Team Accounting Ltd v Brake [2014] NZCA 541 that employers are entitled to make businesses more efficient and that a genuine redundancy reason, combined with compliance with s 4 consultation obligations, will generally satisfy the test. LUO argued the restructure was a predetermined sham to remove her, supported by a witness (AA) who said the directors had discussed getting rid of LUO. The Authority found that BAZ faced genuine and pressing commercial and financial challenges in early 2024, and that LUO had not sufficiently established the restructure was initiated for the purpose of ending her employment. The business reason was therefore substantively genuine.

3. Whether BAZ complied with its procedural and good faith obligations during the restructure (notice and consultation under s 4 of the Act) — Status: Established as a breach (paras [32]-[43]).

The Authority applied the good faith obligations in s 4 of the Act, drawing on Simpson Farms v Aberhart [2006] ERNZ 825 and the principle that employees must be given all relevant information, a reasonable opportunity to respond, and that responses must be genuinely considered. The Authority found the consultation process was piecemeal, largely verbal, inadequately documented, and that LUO was never told her role was specifically at risk or given relevant financial information. The Authority also found the new "Digital and Customer Service Manager" role was substantively the same as LUO's existing role, and there was no justification for requiring her to apply for it rather than being redeployed. These procedural defects were not minor and resulted in LUO being unfairly blindsided.

4. Whether LUO was unjustifiably dismissed by way of redundancy — Status: Established (para [44]).

Applying the s 103A objective justification test, the Authority concluded that while the business reason was genuine, the procedural deficiencies were significant and demonstrably unreasonable. A fair and reasonable employer could not have conducted the process as BAZ did, even accounting for BAZ's small size and limited resources. LUO's unjustified dismissal grievance succeeded.

5. Whether LUO was unjustifiably disadvantaged by bullying — Status: Dismissed (paras [45]-[53]).

The Authority applied the test that LUO must establish unjustifiable action by BAZ affecting her terms and conditions of employment to her disadvantage, referencing the WorkSafe definition of bullying. While the Authority accepted the work environment was difficult, with changing instructions, lack of explanations, and two directors with different work styles, the emails and texts showed criticism of work rather than of LUO personally. The Authority found the method of communication was at times inadequate but did not constitute bullying, and the disadvantage claim was declined.

6. Whether BAZ failed to address bullying/safety concerns raised by LUO — Status: Dismissed (para [46]).

The Authority noted that an employer can only be expected to respond to issues of which it is aware. LUO did not formally raise her bullying concerns with BAZ or other colleagues, and there was no indication she had done so. The claim that BAZ failed to respond to her safety concerns was therefore unsuccessful.

7. Whether the sexual harassment grievance was raised within the statutory time limit under s 114(1) of the Act — Status: Established (in LUO's favour) (paras [55]-[58]).

The 12-month employee notification period under s 114(7)(a) runs from the date of the alleged action or when it came to the employee's notice. LUO's personal grievance letter of 11 April 2024 referenced the Christmas party incident of 16 December 2023, though it was not explicitly framed as a s 103(1)(d) claim. Applying Creedy v Commissioner of Police [2006] ERNZ 517 and Chief Executive of Manukau Institute of Technology v Zivaljevic [2019] NZEmpC 132, the Authority held that the substance of the claim was sufficiently communicated to BAZ to constitute raising a personal grievance, and the claim was within time.

8. Whether LUO was sexually harassed by Mr G at the Christmas party (s 108 of the Act) — Status: Dismissed (paras [59]-[62]).

The Authority applied s 108(1)(b) of the Act, which requires verbal comments of a sexual nature. The Authority found insufficient evidence to support LUO's claim. Key considerations included: the other employee present (BB) did not recall the alleged comments (though she was intoxicated); BB did not recall LUO telling her about an incident the following Monday; BB did not notice any change in LUO's behaviour or presentation after the party despite LUO saying the impact was "extreme"; and the Authority was unwilling to extrapolate Mr G's disorganisation and unpreparedness into a finding of sexual harassment. The claim was unsuccessful.

9. Whether penalties should be awarded for breach of good faith under s 4A of the Act — Status: Dismissed (paras [63]-[64]).

The Authority considered whether penalties were appropriate for the misleading and procedurally deficient restructure process (the same conduct underlying the dismissed claim and the unjustified dismissal finding). The Authority received no submissions on why penalties should be awarded where other remedies had already been granted, and found that penalties were either not available or would be inappropriate where compensation had already been awarded. No penalty orders were made, citing Singh v PR Kahon Ltd & Anor [2026] NZERA 521.

10. Whether LUO's contribution should reduce any remedy under s 124 of the Act — Status: Dismissed (paras [69]-[70]).

The Authority is required to consider contribution under s 124 of the Act. In a redundancy situation it is not usual for an employee to have contributed to the reasons for dismissal, and any performance issues should have been addressed separately by BAZ. No reduction for contribution was applied.

11. Whether lost wages should be awarded — Status: Dismissed (paras [71]-[72]).

The Authority noted the obligation to mitigate losses. LUO chose not to apply for the new position, left four weeks before her planned end date of 16 April 2024, and commenced new employment on 22 April 2024. No award for lost wages was made.

12. Whether compensation for hurt, humiliation, and injury to feelings should be awarded under s 123(1)(c)(i) of the Act — Status: Established (paras [65]-[68], [73]).

The Authority considered LUO's evidence of the impact of the abrupt redundancy on her professional sense of worth, ongoing anxiety about work performance, and feelings of being undervalued and disrespected. BAZ was ordered to pay $11,000 as compensation for humiliation, loss of dignity, and injury to feelings.

13. Costs — Status: Reserved (paras [74]-[76]).

The parties were encouraged to resolve costs between themselves. If unable to do so, LUO may lodge a memorandum on costs within 28 days of the determination, with BAZ having 14 days to reply. The Authority indicated it would apply the usual daily tariff basis if required to determine costs.

The claim was partially upheld: the unjustified dismissal grievance succeeded and compensation was awarded; the unjustified disadvantage (bullying), sexual harassment, and penalty claims were dismissed.

Compensation (hurt, humiliation, loss of dignity, injury to feelings under s 123(1)(c)(i)): $11,000 gross, payable within 28 days of the determination.
Lost wages: None ordered.
Contribution reduction: None applied.
Penalties: None ordered.
Reinstatement: Not ordered (not sought).
Costs: Reserved; parties encouraged to resolve between themselves.

[CONSENT]

Tablebloom Limited (in liquidation) brought a claim against Edmund Kurt Tanner and Celia Tanner. Following mediation on 27 July 2026, the parties were able to partially resolve the issues between them and requested that the Authority issue a consent determination recording the terms of their settlement agreement. The determination is entirely a consent order recording the agreed settlement terms, with no contested merits determination by the Authority.

Applicant: Tablebloom Limited (in liquidation) (employer/company in liquidation)
Respondent: Edmund Kurt Tanner (First Respondent) and Celia Tanner (Second Respondent)

Applicant: Madison Prattley, counsel for the Applicant
Respondent: Self-represented

Tablebloom Limited (in liquidation) filed a claim in the Employment Relations Authority against Edmund Kurt Tanner (First Respondent) and Celia Tanner (Second Respondent). The nature of the underlying employment relationship problem and the specific claims advanced are not described in the body of the determination, as the document is a consent determination. The parties attended mediation on 27 July 2026 and were able to partially resolve the issues between them. They requested the Authority issue a determination by consent recording the terms of their settlement agreement, which is attached to the determination but not reproduced in the body of the document provided. No detail of the individual claims, disputed facts, or the terms of settlement is set out in the determination text available.

1. Whether the Authority should issue a consent determination recording the parties' partial settlement agreement — Status: Established (paras [1]-[2]).

The Authority accepted the parties' joint request, made following mediation, to issue a determination by consent recording the terms of their settlement agreement. No legal test was applied beyond the Authority's power and practice to issue consent determinations under the Employment Relations Act 2000. The determination records that the parties partially resolved their issues and that the settlement terms are attached. No merits analysis was undertaken.

The claim was resolved by partial consent, with the Authority issuing a determination recording the terms of the parties' settlement agreement.

The specific terms of the settlement agreement are attached to the determination but are not reproduced in the body of the document provided; accordingly, the precise remedies agreed cannot be itemised. No remedy was ordered by the Authority on a contested basis. The settlement is recorded as a consent determination.

Yuan Zhao, an employee of the Public Service Commission (PSC), lodged an unjustified disadvantage personal grievance and an application for interim injunctive relief in the Employment Relations Authority (ERA), arising from a disciplinary process conducted using classified security intelligence information. The central legal question was whether the ERA could properly hear the matter given that classified information (provided by NZSIS) underpins the disciplinary process, and whether the matter should be removed to the Employment Court. With both parties consenting, the ERA concluded the grounds for removal were made out and ordered the proceedings transferred to the Employment Court.

Applicant: Yuan Zhao (employee)
Respondent: Public Service Commission (employer)

Applicant: Murray Grant, counsel
Respondent: Peter Gunn, counsel

Mr Zhao is employed by the Public Service Commission. PSC conducted a disciplinary process against him based substantially on classified information provided by the New Zealand Security Intelligence Service (NZSIS). On 27 July 2026, Mr Zhao lodged a statement of problem in the ERA claiming unjustified disadvantage and seeking an interim injunction to restrain steps his employer indicated it would take during the week of 3 August 2026. At the same time, Mr Zhao lodged an application to have the matter removed to the Employment Court as a matter of urgency. PSC consented to removal, confirming that because the disciplinary process relied on classified security information, the matter needed to be heard by an "authorised court" under the Security Information in Proceedings Act 2022 (SIPA). The matter was accorded urgency, and both parties agreed to a truncated process determined on the papers following a case management teleconference on 30 July 2026. Preliminary procedural issues had already arisen between the parties that could not be resolved due to restrictions imposed by the classified information.

1. Whether automatic removal under s 178AA of the Employment Relations Act 2000 (ERA Act) was available — Status: Dismissed (paras [10]).

Section 178AA provides for automatic removal to the Employment Court when the Attorney-General gives written notice that the Crown intends to make a security information application under s 32 of SIPA. The Authority noted there was no suggestion that the required written notice under s 178AA had been or would be provided in this case. Accordingly, this avenue for removal was not available and the Authority turned to s 178 of the ERA Act instead.

2. Whether removal to the Employment Court was warranted on the ground of important questions of law likely to arise (s 178(2)(a) of the ERA Act) — Status: Established (paras [12]–[14], [19]–[20]).

Section 178(2)(a) permits removal where an important question of law is likely to arise other than incidentally. The Authority found that novel and important questions of law are likely to arise, given that the involvement of classified information has not previously been considered in the context of employer obligations under ss 4 and 103A of the ERA Act, s 73 of the Public Service Act 2020, natural justice, and the New Zealand Bill of Rights Act 1990. The intersection of employment law, national security, and classified material was described as novel and legally complex. The ground under s 178(2)(a) was met.

3. Whether removal to the Employment Court was warranted on the ground of nature and urgency making it in the public interest (s 178(2)(b) of the ERA Act) — Status: Established (paras [12]–[13], [19]–[21]).

Section 178(2)(b) permits removal where the case is of such nature and urgency that it is in the public interest to be removed immediately to the court. The Authority found there is a public interest beyond the circumstances of this case in addressing the tension between national security considerations, employment rights of public servants, and employer obligations when relying on classified information in a disciplinary context. Mr Zhao sought urgent injunctive relief regarding steps his employer intended to take the following week, and the ERA was unable to hear the relevant classified evidence. The ground under s 178(2)(b) was met.

4. Whether the ERA has jurisdiction to investigate and determine the matters given the involvement of classified security information — Status: Established (ERA cannot properly exercise jurisdiction) (paras [15]–[19]).

The Authority applied s 4(d) of the Security Information in Proceedings Act 2022, which designates the Employment Court (not the ERA) as an "authorised court" with the powers and procedures to deal with classified information in proceedings. The ERA, not being an authorised court, was effectively unable to hear and determine the employment relationship problems because relevant evidence would involve classified security information that neither party could properly rely on before it. The ERA concluded it was constrained from investigating Mr Zhao's matters by reason of the type of information involved.

5. Whether the residual discretion not to remove the matter should be exercised — Status: Dismissed (paras [21]).

Following Auckland District Health Board v X (No 2) [2005] ERNZ 551 at 561–562, the Authority is required to consider whether residual discretion should be exercised against removal even where statutory grounds are met. The Authority found there was no question that removal was desirable: the ERA could not hear the evidence either party might wish to rely on, urgency had been accorded, and the Employment Court — as the only institution in the employment jurisdiction able to deal with classified security information — was the appropriate forum. Residual discretion was not exercised against removal.

6. Costs — Status: Reserved (para [23]).

The Authority reserved costs and encouraged the parties to resolve any costs issue between themselves. No costs order was made at this stage.

The application for removal was upheld; Mr Zhao's unjustified disadvantage personal grievance claims and application for interim injunction are removed to the Employment Court for hearing and determination without the Authority first investigating the matters.

None ordered at this stage. The matter (including the personal grievance claims and interim injunction application) has been removed to the Employment Court for substantive determination. Costs are reserved.

William Morgan, a Carpentry Apprentice employed by JML Construction Limited from October 2021 to September 2025, brought claims against JML and its sole director John Luxton arising from JML's sustained failure to pay his wages and holiday entitlements, which ultimately led to his resignation. The key legal questions were whether the non-payment constituted unjustified constructive dismissal and unjustified disadvantage, whether employment standards were breached, whether Luxton was personally involved in those breaches, and whether leave should be granted to recover from Luxton personally. The claims succeeded substantially: JML was ordered to pay $33,918.08 (wages, holiday pay, KiwiSaver contributions, interest, distress compensation, and costs), a $1,000 penalty was imposed payable to the Crown, and Luxton was found to be a person involved in the breaches with leave granted to recover from him personally if JML defaults.

Applicant: William Morgan (employee — Carpentry Apprentice)
Respondent: JML Construction Limited (first respondent — employer); John Luxton (second respondent — sole director and shareholder of JML)

Applicant: Paul Mathews, advocate
Respondent: No appearance

William Morgan was employed as a Carpentry Apprentice by JML Construction Limited from 4 October 2021, with John Luxton as sole director responsible for all aspects of his employment. Morgan's wage payments became sporadic from mid-2025; a first extended non-payment ran from approximately 9 June to 13 July 2025, and a second and final period of non-payment ran from 18 August to 19 September 2025 (five weeks), despite Morgan continuing to work throughout. After multiple unanswered WhatsApp messages and a final unanswered phone call, Morgan resigned on 26 September 2025, citing uncertainty around pay and communication. JML failed to pay his outstanding wages or his holiday pay entitlements upon termination, and neither respondent lodged any defence, attended mediation, responded to the Authority's directions for employment records, or attended the investigation meeting. Morgan's evidence — supported by contemporaneous WhatsApp messages and a corroborating affidavit from his partner — was accepted as truthful and uncontested; s 132(2) of the Act applied to permit the Authority to accept Morgan's evidence on hours worked and amounts owed.

1. Whether Mr Morgan was owed wage arrears for hours worked but not paid — Status: Established (paras addressing "Hours worked but not paid").

The Authority accepted Morgan's uncontested payslip evidence under s 132(2) of the Act. At $26.00 per hour for a contractual 40-hour week over five weeks (18 August–19 September 2025), the Authority calculated unpaid wages of $5,200.00 gross. JML's failure to maintain and produce wage and time records meant the Authority relied on Morgan's own evidence, which was found to be credible.

2. Whether Mr Morgan was owed outstanding annual holiday pay under the Holidays Act 2003 — Status: Established (paras addressing "Outstanding holiday pay").

The Authority applied s 27 of the HA03, which requires payment of accrued holiday entitlements on termination. In the absence of employer records, Morgan's evidence from his online pay app was accepted. The Authority calculated: (a) $3,676.80 for the accrued but unused leave balance of 3.83 weeks at $960/week; and (b) $3,904.00 (being 8% of gross earnings of $48,800 since the last leave anniversary), totalling $7,580.80 gross in outstanding annual holiday pay.

3. Whether JML owed outstanding KiwiSaver Compulsory Employer Contributions (CEC) — Status: Established (paras addressing "KiwiSaver").

Morgan's employment agreement required JML to pay the CEC (3%) on top of wages. The Authority calculated 3% of total wage arrears of $12,780.80 (unpaid wages plus holiday pay) as $383.42, which JML was ordered to pay.

4. Whether interest should be awarded on wage arrears — Status: Established (paras addressing "Should interest be awarded").

The Authority found it appropriate to compensate Morgan for being deprived of use of his money. Using the Ministry of Justice Civil Debt Interest Calculator, interest of $432.27 was awarded for the period 26 September 2025 to 11 August 2026 on the total wage arrears of $13,164.22, with continuing interest accruing from 12 August 2026 until payment in full.

5. Whether JML breached s 4 of the Wages Protection Act 1983 (WPA) by failing to pay wages in full and on time — Status: Established (paras addressing "Did JML breach the WPA and/or HA03?").

Section 4 of the WPA requires wages to be paid in full when due. JML's repeated failure to pay Morgan's wages over the relevant periods constituted a breach of s 4. The breaches were deliberate and ongoing.

6. Whether JML breached s 27 of the Holidays Act 2003 by failing to pay annual holiday pay on termination — Status: Established (paras addressing "Did JML breach the WPA and/or HA03?").

Section 27 of the HA03 requires payment of accrued holiday entitlements in the final pay. JML paid nothing on termination. The breach was confirmed.

7. Whether JML breached s 130 of the Employment Relations Act 2000 (Act) and ss 81–82 of the HA03 by failing to keep and produce wage, time, holiday and leave records — Status: Established (paras addressing "Has JML breached employment standards?").

JML failed to comply with the Authority's directions to produce employment records and failed to maintain the records required by statute. These failures constituted independent breaches of employment standards under s 5 of the Act.

8. Whether penalties should be imposed on JML for breaches of the WPA and HA03 — Status: Established (paras addressing "Should penalties be imposed").

The Authority applied the four-step framework from Borsboom v Preet PVT Limited [2016] NZEmpC 43 as refined by Nicholson v Ford [2018] ERNZ 393 and s 133A of the Act. The maximum penalty was $20,000 per breach ($40,000 total for two globalised breaches). Applying the relevant factors — deliberate and ongoing breaches, high culpability, Morgan's vulnerability as an apprentice, no mitigation, and need for deterrence — the Authority imposed a total globalised penalty of $1,000 ($500 per breach). The Authority noted proportionality and consistency with comparable cases.

9. Whether the penalty imposed on JML should be paid to Mr Morgan rather than the Crown — Status: Dismissed (paras addressing "Should some or all of the penalty imposed be paid to Mr Morgan").

The Authority exercised its discretion under s 136 of the Act and directed the full $1,000 penalty to the Crown. The Authority's reasoning was that Morgan had already been compensated for the same breaches through the distress compensation award for his personal grievance, making a further payment to him duplicative.

10. Whether a penalty should be imposed on Mr Luxton personally under s 142X of the Act for being a person involved in a breach of employment standards — Status: Dismissed (paras addressing "Should penalties be imposed on the respondents?").

Section 142X(2) of the Act restricts applications for penalties against a person involved in a breach to Labour Inspectors only. Because Morgan (not a Labour Inspector) made the application, the Authority held it lacked jurisdiction to impose a personal penalty on Luxton under s 142X, and that claim did not succeed.

11. Whether JML breached employment standards as defined in s 5 of the Act — Status: Established (paras addressing "Has JML breached employment standards?").

Section 5 of the Act defines employment standards to include minimum entitlements under the WPA and HA03, and record-keeping obligations under s 130 of the Act and ss 81–82 of the HA03. JML's failures across all four dimensions constituted breaches of employment standards.

12. Whether Mr Luxton was "a person involved in the breach of employment standards" under s 142W of the Act — Status: Established (paras addressing "Was Mr Luxton 'a person involved in the breach of employment standards'?").

Section 142W(3) includes a director of the employer company within the definition of "a person involved in a breach." Luxton, as sole director with exclusive decision-making power over wage payments, had direct knowledge of and was directly responsible for JML's failures to pay, to keep records, and to pay holiday pay. The Authority found he aided, abetted and was directly involved in the breaches.

13. Whether leave should be granted under s 142Y(2) to recover from Mr Luxton personally any wage arrears and other money JML defaults on paying — Status: Established (paras addressing "Should leave be granted to Mr Morgan to recover from Mr Luxton personally").

Section 142Y requires: (a) a default in payment; (b) that the default arose from a breach of employment standards; and (c) that the person against whom leave is sought was involved in that breach. All three criteria were met. Morgan's evidence that Luxton attributed non-payment to JML's financial difficulties provided credible risk of JML defaulting. Leave was granted.

14. Whether Mr Morgan was constructively dismissed in breach of s 103(1)(a) of the Act — Status: Established (paras addressing "Was Mr Morgan's resignation an unjustified constructive dismissal?").

The Authority applied Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) and Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers (Inc) [1994] 2 NZLR 415 (CA). A constructive dismissal arises where an employer's fundamental breach of duty is of sufficient seriousness that resignation is a reasonably foreseeable consequence. The obligation to pay wages is a fundamental contractual term; JML's sustained and repeated failure to pay was such a breach, and resignation was its foreseeable consequence. Morgan's resignation was not free and voluntary but was caused by JML's conduct.

15. Whether JML's constructive dismissal was justified under s 103A(2) of the Act — Status: Dismissed (paras addressing "Justification").

JML's actions did not meet the standard of what a fair and reasonable employer could do in all the circumstances. No justification was established.

16. Whether JML unjustifiably disadvantaged Mr Morgan under s 103(1)(b) of the Act by failing to pay wages in full and on time — Status: Established (paras addressing "Did JML's failure to pay Mr Morgan his wages unjustifiably disadvantage him?").

JML's persistent failure to pay Morgan his wages constituted unjustified action that disadvantaged him in his employment. The claim succeeded. However, because the same facts also underpinned the constructive dismissal claim, the Authority avoided duplication by awarding remedies only once for the same conduct.

17. Whether distress compensation under s 123(1)(c)(i) should be awarded and in what amount — Status: Established (paras addressing "Distress compensation").

Morgan's evidence (supported by his partner's affidavit) demonstrated serious financial embarrassment including mortgage default, depletion of savings, relationship strain, adverse health effects, loss of confidence, and diminished trust in authority figures. The Authority awarded $18,000.00 in distress compensation.

18. Whether lost remuneration should be awarded — Status: Not reached/nil award (paras addressing "Lost remuneration").

Morgan made no claim for lost wages, having adequately mitigated his loss by finding alternative employment. No award was made.

19. Whether Morgan's remedies should be reduced for contributory conduct under s 124 of the Act — Status: Dismissed (paras addressing "Contribution").

The Authority found no blameworthy conduct on Morgan's part proved on the balance of probabilities. No reduction was applied.

20. What costs and disbursements should be awarded — Status: Established (paras addressing "What costs and disbursements should be awarded?").

Treating the matter as a half-day investigation meeting, the notional starting tariff was $2,250.00. Morgan's actual legal costs exceeded this tariff. As the successful party, he was awarded $2,250.00 towards legal costs plus $71.55 filing fee reimbursement, payable on a joint and several basis by both respondents within 28 days.

The claims were upheld substantially: constructive dismissal, unjustified disadvantage, wage arrears, holiday pay arrears, and employment standards breaches all established; penalties imposed on JML; leave granted to recover from Luxton personally; claim for penalty against Luxton personally dismissed for lack of jurisdiction.

- Wage arrears (hours worked): $5,200.00 gross
- Annual holiday pay arrears: $7,580.80 gross
- KiwiSaver CEC on wage arrears: $383.42
- Interest on wage arrears (26 September 2025 to 11 August 2026): $432.27
- Continuing interest on $13,596.49 from 12 August 2026 until paid in full
- Distress compensation (s 123(1)(c)(i)): $18,000.00 (without deduction)
- Costs contribution: $2,250.00
- Filing fee reimbursement: $71.55
- Total ordered against JML: $33,918.08 (payable within 28 days)
- Penalty: $1,000.00 payable by JML to the Crown (within 28 days)
- Reinstatement: Not sought/not ordered
- Personal liability of Luxton: Leave granted under s 142Y(2) to recover from Luxton personally if JML defaults; if JML defaults, Luxton ordered to pay $15,918.04 (comprising $13,164.22 wage arrears including KiwiSaver CEC and holiday pay, $432.27 interest, and $2,321.55 costs/disbursements) plus any continuing interest from 12 August 2026; costs of $2,321.55 on joint and several basis with JML
- Luxton directed within 28 days to ensure JML pays or to provide written evidence of inability to pay

The Eliezer 1 & 2 Trust (employer/applicant) sought to recover $9,086.40 from former employee Andrew Martin under a penalty clause in his individual employment agreement after he resigned without working his four-week notice period, as well as $39.05 representing an alleged overpayment of annual leave during a Christmas closedown. The key legal questions were whether clause 5 of the IEA constituted an enforceable contractual penalty and whether the Trust could recover the leave overpayment. Both claims were dismissed in full.

Applicant: Brian Ross and Andrea Dawn Ross as Trustees of Eliezer 1 & 2 Trust (employer)
Respondent: Andrew Martin (employee)

Applicant: Brian Ross and Natasha Ross (self-represented)
Respondent: No appearance

Andrew Martin was employed as a painter by the Trust from approximately 5 November 2024, subject to a 90-day trial period. His last day of work was 20 December 2024, after which a Christmas closedown ran until 12 January 2025. On 13 January 2025 — the day before he was due to return to work — Mr Martin sent a resignation text message giving no notice. The Trust attempted to contact Mr Martin multiple times by text, email, and hand-delivered letters to inform him of his obligations under clause 5 of the IEA, which required an employee who left without working the agreed notice period to pay the difference between his wages and the retail cost of hiring a replacement contractor. Mr Martin did not respond and never returned to work. The Trust engaged a third-party contractor to continue the painting work on its vacant rental properties and calculated the cost differential at $9,086.40. The Trust also claimed $39.05 for 1.54 hours of annual leave it said was overpaid in anticipation of Mr Martin returning after the closedown. Mr Martin did not participate in the investigation at any stage.

1. Whether clause 5 of the IEA constitutes an enforceable contractual provision entitling the Trust to recover $9,086.40 — Status: Dismissed (paras [18]-[32]).

The Authority applied the Supreme Court's penalty clause test from 127 Hobson Street Ltd v Honey Bees Preschool Ltd [2020] NZSC 53, which holds that a clause stipulating consequences for breach is an unenforceable penalty if those consequences are out of all proportion to the innocent party's legitimate interest in performance. The Authority also relied on Caleys Limited v Teina Deadman [2024] NZEmpC 200, which applied the same analysis to employment agreement forfeiture clauses, noting the inherent inequality of bargaining power in employment relationships under s 3(a)(ii) of the Employment Relations Act 2000. The Authority found the Trust could not demonstrate a legitimate interest in the clause: the nature of a rental property business must anticipate periods of vacancy as a normal operating cost, so using a penalty clause to indemnify against that cost was not a legitimate interest. Additionally, the clause was found independently unenforceable as unconscionable and overwhelmingly unfair because, during the same 90-day trial period, the Trust needed to give only one week's notice to dismiss Mr Martin (and he could not raise a personal grievance), yet the clause purported to hold him liable for the equivalent of four weeks' contractor costs. The reference to s 134 of the Act in the clause confirmed its penal character. The Authority also noted uncertainty about the true reasons for Mr Martin's resignation, including a possible workplace grievance.

2. Whether an order should be made requiring Mr Martin to pay $9,086.40 under clause 5 — Status: Not reached (paras [31]-[32]).

Because clause 5 was found to be unenforceable, the question of whether an order should be made to give effect to it did not arise and was not decided on its merits.

3. Whether the Trust can recover the $39.05 overpayment of annual leave relating to the Christmas closedown period — Status: Dismissed (para [34]).

The Authority considered s 6 of the Wages Protection Act 1983, which permits employers to recover overpayments but only if strict procedural requirements are met. The Authority found those procedural requirements had not been complied with in this case and accordingly declined to make any order for recovery of the overpayment.

4. Whether statutory penalties under the Employment Relations Act 2000 for breach of the employment agreement were sought or available — Status: Not reached (para [30]).

The Authority noted for completeness that penalties under the Act for breach of an employment agreement had not been sought by the Trust, so no determination was made on that issue.

5. Costs — Status: Dismissed (para [37]).

The Trust was self-represented and Mr Martin did not participate, so no costs issue arose and no costs order was made.

Both claims were dismissed in full — the Trust's application to recover $9,086.40 under clause 5 of the IEA and the claim for recovery of the $39.05 annual leave overpayment were both unsuccessful.

None ordered.

[COSTS ONLY]

Yasodhara Scarborough, a former employee, had her personal grievance of unjustified constructive dismissal against Sunrise Healthcare Limited dismissed by the Authority in January 2026. The costs question was reserved, but the employer failed to file its costs submissions within the directed timeframe. This determination addresses solely whether the employer's late costs claim should be entertained, and concludes it should not — costs lie where they fall.

Applicant: Yasodhara Scarborough (employee)
Respondent: Sunrise Healthcare Limited (employer)

Applicant: Self-represented
Respondent: Michael Witt, counsel for the Respondent

Ms Scarborough's personal grievance of unjustified constructive dismissal against Sunrise Healthcare Limited (SHL) was declined by determination dated 14 January 2026 ([2026] NZERA 20), with costs reserved. SHL was directed to file its costs memorandum within 21 days of that determination, i.e., by 4 February 2026, if the parties could not resolve costs between themselves. SHL did not file costs submissions by the due date and did not seek an extension of time. On 27 March 2026 — 51 days after the due date — an HR advisor for SHL emailed the Authority claiming costs, attributing the delay to her recently taking over the HR function and only then gaining "full visibility" of the file. Costs submissions were subsequently filed through SHL's counsel, Mr Witt, on 17 April 2026. Ms Scarborough opposed any costs award, noting she was not contacted by SHL about costs until 23 March 2026 (when she declined the offer made), and submitted she would be materially prejudiced by a late costs order.

1. Whether SHL's late filing of costs submissions automatically extinguishes its entitlement to costs — Status: Dismissed (paras [7], [10]).

The Authority confirmed there is no blanket prohibition preventing consideration of costs outside the directed timetable; the absence of an express prohibition in the determination does not automatically extinguish a costs claim. The determination of costs, including whether to entertain late submissions, involves an exercise of discretion that must be performed on a principled basis. The lateness of filing is not, by itself, determinative.

2. Whether the Authority should exercise its discretion to consider SHL's late costs claim, having regard to the reasons for delay, prejudice to Ms Scarborough, and the principle of finality — Status: Dismissed (paras [10]-[13]).

The Authority identified the relevant considerations as: the reasons for the delay, the effect of that delay on the other party, the principle of finality, and the expectation that Authority directions will be complied with (citing Metallic Sweeping (1998) Limited v Whitehead [2010] NZEmpC 23). Applied to the facts, the reasons given (staffing changes and miscommunication) were found to be unremarkable and not compelling. SHL, a well-resourced employer with both internal HR personnel and experienced counsel, had 21 days to file or seek an extension and did neither. The delay of over seven weeks beyond the due date before any attempt was made was characterised as inordinate and significant, and the principle of finality had gained such traction that the late costs claim could not be entertained. Consequently, costs lie where they fall.

The respondent's late costs claim was declined in its entirety; costs lie where they fall and no costs order is made against either party.

None ordered. The Authority declined to entertain SHL's late costs application; no costs award was made in favour of either party.

Jonathan Rhodes, a Senior Property Manager, was dismissed by Barfoot & Thompson Limited (B&T) for medical incapacity following a series of head injuries sustained at work. He claimed unjustified dismissal, alleging B&T failed to conduct a fair inquiry, provide a genuine opportunity to recover, or consider reasonable alternatives. The Authority found the dismissal unjustified and awarded $30,000 compensation for hurt and humiliation, but declined to award lost wages as Rhodes was receiving ACC income compensation equivalent to what he would have received had he remained employed.

Applicant: Jonathan Rhodes (employee — Senior Property Manager)
Respondent: Barfoot & Thompson Limited (employer — property sales and management company)

Applicant: Teresa Brown, advocate
Respondent: Kiri Harkess and Sakshi Gulati, counsel

Mr Rhodes began working for B&T as a Property Manager in 2012 and was promoted to Senior Property Manager in 2017. He suffered a serious car accident in November 2022 during work hours, was diagnosed with concussion in May 2023, and sustained a further head injury at work on 22 June 2023 while still performing his full duties. Despite clinical guidance from an occupational therapist recommending a graduated return to work on reduced hours, B&T made no adjustments to his role or hours. Mr Rhodes commenced sick leave on 14 September 2023, and B&T offered him a full-time Property Manager role with reduced portfolio size in September 2023, which he declined as it was both unaffordable and inconsistent with his clinical needs. In December 2023, his GP recommended a trial part-time return, which B&T also declined, instead requiring ACC Stay at Work team clearance. On 16 January 2024, aware that a neurological assessment was scheduled within the month, B&T dismissed Mr Rhodes with four weeks' notice on medical incapacity grounds, without awaiting that assessment. A mediation or similar pre-investigation process is not specifically mentioned, but a personal grievance was raised and the matter proceeded to the Authority's investigation meeting.

1. Non-publication order in respect of information retrieved from Mr Rhodes's work phone — Status: Established (paras [3]-[9]).

The Authority applied the Schedule 2 Employment Relations Act 2000 principle that publication orders require sparingly exercised departure from open justice, citing Erceg v Erceg [2016] NZSC 135 and MW v Spiga Ltd [2024] NZEmpC 147. The phone material played no role in B&T's decision to dismiss and formed no part of the Authority's reasoning; it was sought by B&T only as potential contribution evidence, which was rejected. Publishing untested and irrelevant allegations of wrongdoing carried a real and foreseeable risk of significant harm, and no open-justice interest was lost by suppressing material not relied upon. The order was made prohibiting publication of information retrieved from Mr Rhodes's work phone and any reference to its content.

2. Whether Mr Rhodes was unjustifiably dismissed — Status: Established (paras [46]-[59]).

The Authority applied the three-step framework from Lal v The Warehouse Ltd [2017] NZEmpC 66 (reasonable opportunity to recover; fair and reasonable inquiry into prognosis; genuine consultation with the employee) and the heightened rehabilitation obligation from Lyttelton Port Company Ltd v Arthurs [2018] NZEmpC 9 where the employer's own conduct contributed to the incapacity. The s 103A justification test was also engaged. The Authority found B&T failed on three fronts: it did not provide a genuine opportunity to recover (Rhodes worked full-time while symptomatic and suffering further injuries, contrary to clinical guidance); its inquiry was incomplete when it dismissed (a neurological assessment was imminent and an employer-commissioned examination under clause 13.3 of the IEA could have resolved outstanding uncertainty but was not obtained); and the alternative Property Manager role offered was not a genuine alternative as it did not engage with the graduated, reduced-hours pathway recommended in the clinical guidance. The Authority also found no predetermination, distinguishing Paykel Ltd v Morton [1994] 1 ERNZ 875, and noted B&T's own management contributed to the severity of Rhodes's condition. The dismissal was unjustified.

3. Whether there was predetermination in B&T's process — Status: Dismissed (paras [57]-[58]).

The Authority applied the Paykel Ltd v Morton test for predetermination and found no parallel facts: B&T had not secretly advertised Rhodes's role, had notified him dismissal was under consideration on 10 January 2024, and had met with him and his support person before deciding. B&T was entitled to form a provisional view while keeping an open mind. The unjustified nature of the dismissal arose from the incompleteness of the inquiry underlying that view, not from procedural bad faith.

4. Whether B&T's failure to exercise the medical examination discretion in clause 13.3 of the IEA rendered the dismissal unjustified — Status: Established (as a contributing factor) (paras [51]-[52]).

The Authority accepted B&T's construction that clause 13.3 made the right to commission an independent medical examination discretionary and independent from the right to terminate. However, it held that the existence of that discretion was not neutral to the fair and reasonable employer inquiry: clause 13.3 was the very mechanism designed to resolve the kind of uncertainty B&T said justified dismissal. Having chosen not to exercise a discretion that could have answered its outstanding questions at no cost or delay attributable to Rhodes, B&T could not then rely on that same unresolved uncertainty to justify proceeding to dismiss.

5. Whether B&T's operational strain justified dismissal without awaiting the neurological assessment — Status: Dismissed (paras [55]-[56]).

The Authority accepted B&T faced genuine operational strain by January 2024, distinguishing this from Sheridan v Pact Group [2026] NZEmpC 51 where the employer made no effort to arrange cover. However, genuine informal effort at the margins did not overcome the fundamental failures to provide a recovery opportunity or complete the inquiry. B&T's own conduct had contributed to the severity and duration of the incapacity it claimed it could no longer sustain.

6. Whether Mr Rhodes was entitled to reimbursement of lost wages under s 123(1)(b) and s 128 of the Act — Status: Dismissed (paras [60]-[65]).

The remedy is compensatory and reimburses loss actually caused by the grievance. Rhodes had been receiving ACC income compensation at 80% of pre-incapacity earnings and B&T had no contractual or statutory obligation to top up the balance. Had he remained employed, he would have continued receiving the same ACC compensation and no more (his leave was exhausted before dismissal). His actual position and his counterfactual position were therefore the same; the shortfall between ACC compensation and ordinary earnings was not caused by his dismissal. The Authority distinguished Sheridan v Pact Group on this point, noting that the 20% net figure used there was a concession by counsel not replicated here. No award was made.

7. Whether Mr Rhodes was entitled to compensation for hurt and humiliation under s 123(1)(c)(i) of the Act — Status: Established (paras [66]-[73]).

The compensation is directed at humiliation, loss of dignity, and injury to feelings actually caused by the employer's unjustified conduct; it is not punitive. The Authority carefully separated distress arising from the underlying brain injuries from distress attributable to the unjustified dismissal. Rhodes lost his job, income security, collegial friendships, and stimulating work during a period of ongoing cognitive vulnerability, and there was no indication B&T's process took those vulnerabilities into account. The Authority benchmarked against Honamombe v Tegel Foods Ltd [2023] NZERA 721 ($30,000 for broadly similar facts) and Sheridan v Pact Group ($30,000, involving psychological injury). A distinctive aggravating feature — that B&T's own management of Rhodes's workload contributed to his worsening condition — supported the higher end of the range. Compensation of $30,000 was awarded.

8. Whether any remedy should be reduced for Mr Rhodes's contributory conduct under s 124 of the Act — Status: Dismissed (paras [74]-[76]).

B&T relied on three grounds: declining the Property Manager role, the phone material, and failure to mitigate. Declining an offer inconsistent with the graduated return the clinical guidance recommended was not blameworthy conduct causally connected to the dismissal. The phone material disclosed no conduct causally connected to the situation giving rise to the grievance (it post-dated and was unrelated to the incapacity dismissal). Failure to mitigate was not relevant given no lost wages award was made. No reduction was applied.

9. Whether the wage arrears claim lodged immediately before the investigation meeting should proceed — Status: Dismissed/Withdrawn (para [11]).

This new claim was lodged by memorandum on 23 March 2026. B&T objected on prejudice grounds. After a brief adjournment, Mr Rhodes confirmed he no longer intended to pursue it and the matter proceeded without it.

10. Costs — Status: Reserved (paras [78]-[80]).

The Authority encouraged the parties to resolve costs between themselves. If not resolved, Mr Rhodes may lodge a costs memorandum within 14 days of the determination, with B&T having 14 days to respond. Costs will be assessed on the Authority's usual notional daily rate unless particular circumstances justify adjustment.

The personal grievance claim was partially upheld: the dismissal was found unjustified and $30,000 compensation for hurt and humiliation was awarded, but the claim for reimbursement of lost wages was dismissed.

Compensation (hurt and humiliation, s 123(1)(c)(i)): $30,000, payable within 28 days of 10 August 2026.
Lost wages reimbursement: None ordered.
Contribution reduction: None applied.
Reinstatement: Not sought or ordered.
Costs: Reserved — parties encouraged to resolve; timetable set if Authority determination required.

[COSTS ONLY]

This is a costs determination following a substantive decision issued on 19 May 2026 in which Sasha Lee succeeded against her employer JNJ Management Limited (JNJ) for wage arrears, compensation, annual holiday pay, and notice-equivalent pay. Ms Lee applied for costs against JNJ, and National Holdings Limited (NHL), a related entity that successfully defended the claim that it was Ms Lee's employer, applied for costs against Ms Lee. The Authority awarded Ms Lee $5,500 in costs against JNJ and declined NHL's cross-application for costs.

Applicant: Sasha Lee (employee)
Respondent: JNJ Management Limited (first respondent/employer); National Holdings Limited (second respondent, related entity)

Applicant: Kara Orviss, advocate for the Applicant
Respondent: Chris Patterson, counsel for the Respondent

In the substantive determination ([2026] NZERA 309, 19 May 2026), the Authority found that Ms Lee was employed by JNJ (the parent company of the JNJ group) and not by NHL (a related entity within the group). JNJ was ordered to pay significant sums including $105,342.25 in wage arrears, $34,373.75 in annual holiday pay, $17,500 in compensation under s 123(1)(c)(i) of the Employment Relations Act 2000 (ERA), and 13 weeks' wages under s 128(2). Costs were reserved and the parties were encouraged to resolve costs between themselves but were unable to do so. Ms Lee applied for costs against JNJ, seeking the base daily tariff plus an uplift. NHL, having successfully defended the employment status issue, applied for costs against Ms Lee. The investigation meeting ran for one day and was conducted on the papers for the costs phase.

1. Whether Ms Lee is entitled to costs against JNJ on the basis that costs follow the event — Status: Established (paras [9]-[22], [28]-[30]).

Under clause 15 of Schedule 2 of the ERA, costs are discretionary but generally follow the event, with a starting point of the notional daily tariff ($4,500 for a one-day investigation meeting), subject to adjustment for relevant factors including complexity, unreasonable conduct, and Calderbank offers (following Fagotti v Acme & Co Ltd [2015] NZEmpC 135 and JCE v The Chief Executive of the Department of Corrections [2018] NZERA 175). Ms Lee was the successful party in the substantive determination, so costs followed in her favour. The base tariff of $4,500 was applied for the one-day investigation meeting.

2. Whether the daily tariff should be uplifted to reflect additional time spent after the investigation meeting — Status: Dismissed (para [11]).

Ms Lee sought an uplift of $875 (equivalent to a quarter day) for time spent preparing post-hearing submissions. The Authority declined this uplift on the basis that costs associated with preparing submissions following an investigation meeting are already incorporated within the daily tariff rate.

3. Whether Ms Lee's Calderbank offer justifies an uplift on the daily tariff — Status: Established (paras [12]-[22]).

Ms Lee served a Calderbank offer on JNJ on 8 April 2025 (approximately one year before the 4 May 2026 investigation meeting), seeking $40,000 under s 123(1)(c)(i) and a $6,000 costs contribution, on a full and final basis. JNJ rejected the offer. Although the compensatory sum ultimately awarded ($17,500) was less than the Calderbank offer's compensation component, the Authority found that acceptance would have avoided the entire proceedings — including the significant wage arrears claim (added in February 2026) — resulting in JNJ paying far less overall. Applying Reid v Ngati Rangi Trust [2021] NZEmpC 110 and Stevens v Hapag-Lloyd (NZ) Limited [2015] NZEmpC 137, the Authority held there is a public interest in encouraging early resolution and that the Calderbank offer could be taken into account, while keeping costs modest. An uplift of $1,000 was granted, bringing the total to $5,500.

4. Whether NHL is entitled to costs against Ms Lee as a successful party — Status: Dismissed (paras [23]-[27]).

NHL argued it was a successful party because the Authority found Ms Lee was not employed by NHL. The Authority declined NHL's application, noting that the investigation meeting (including the employment status issue) ran for only one day, that the primary witness for both JNJ and NHL was the same person (Mr James Kwak, sole director and CEO of the group), and that Ms Lee was the overall successful party in the proceedings. The Authority treated the consolidated proceedings as a single event won by Ms Lee.

5. Whether Ms Lee is entitled to reimbursement of the filing fee — Status: Established (para [30]).

As a supplementary costs matter, the Authority ordered JNJ to reimburse Ms Lee the filing fee of $71.55.

Ms Lee's costs application was partially upheld (base tariff granted; uplift for post-hearing submissions declined; Calderbank uplift granted), and NHL's costs application was dismissed in full.

Costs awarded to Ms Lee against JNJ: $5,500 (comprising the $4,500 daily tariff plus a $1,000 Calderbank uplift), payable within 28 days.
Filing fee reimbursement: $71.55, payable by JNJ to Ms Lee within 28 days.
NHL's costs application: None ordered.

Travelessence Limited (TL) applied to the Employment Relations Authority seeking enforcement of a mediated settlement agreement after its former employee, Hannah Elt, failed to return company property (a MacBook Air laptop and iPhone 12) following the end of her employment. The key legal questions were whether Ms Elt breached the terms of settlement and employment agreement by retaining the property, whether a compliance order and penalty were warranted, and whether costs should be awarded. The Authority found in TL's favour on all substantive issues, issuing a compliance order and a $2,000 penalty, with costs reserved.

Applicant: Travelessence Limited (employer)
Respondent: Hannah Elt (former employee)

Applicant: Christopher Scarrott, counsel for the Applicant
Respondent: No appearance

Hannah Elt was employed by Travelessence Limited as a product manager from 29 July 2024. On 4 August 2024, Ms Elt signed a loan agreement under which TL provided her with a MacBook Air laptop and an iPhone 12. Ms Elt resigned on 22 August 2025, and on 4 September 2025, both parties signed a mediated terms of settlement under s 149 of the Employment Relations Act 2000 (the Act), which included clause 10 requiring Ms Elt to abide by surviving terms of her employment agreement — including clause 19.5 obliging her to return company property upon termination. Despite multiple emails from TL's HR Manager (dated 10 September, 17 September, 24 September, and 5 November 2025) requesting return of the property, Ms Elt did not reply or return the items. TL lodged a statement of problem with the Authority on 9 March 2026; Ms Elt made one inquiry about the reply process in April 2026 but never filed a statement in reply despite being given multiple extensions. The matter was determined on the papers with no appearance from Ms Elt.

1. Whether Ms Elt breached clause 10 of the terms of settlement and clause 19.5 of the individual employment agreement by failing to return company property — Status: Established (paras [13]-[22]).

Clause 10 of the terms of settlement required Ms Elt to abide by any surviving terms of her employment agreement; clause 19.5 of the employment agreement required immediate return of employer property upon termination. The Authority applied the principle, confirmed in Talent Propeller Ltd v YJL [2020] NZERA 284, that post-termination property return obligations survive the end of employment and are enforceable. On the uncontested affidavit evidence of TL's HR Manager, the Authority found Ms Elt retained the company property without response to TL's repeated requests, constituting a clear breach of both provisions.

2. Whether a compliance order should be issued requiring return of company property to TL — Status: Established (paras [23]-[24]).

The Authority exercised its discretion under s 137(2) of the Act to issue a compliance order to prevent further non-observance of the terms of settlement. Given Ms Elt's ongoing failure to return property and complete lack of engagement, the Authority ordered Ms Elt to return the company property within 7 days of the determination.

3. Whether a penalty should be imposed against Ms Elt for breaching the terms of settlement — Status: Established (paras [25]-[38]).

Under s 149(4) and s 135(2)(a)-(b) of the Act, a party who breaches a s 149 settlement agreement is liable to a penalty. The Authority applied the four-step penalty framework from Borsboom v Preet PVT Ltd [2016] NZEmpC 143 and the factors listed in s 133A of the Act. The Authority found the breach was intentional, ongoing for approximately ten months, and that Ms Elt provided no explanation. TL suffered loss of property and incurred time and expense pursuing enforcement. For consistency, the Authority referenced Decom Ltd v Cleaver ($750 penalty) and Te Manawa O Tuhoe Trust v McDonnell ($1,500 penalty) and determined $2,000 payable to TL was appropriate and proportionate.

4. Whether either party is entitled to costs — Status: Not reached (paras [41]-[44]).

The Authority reserved costs, encouraging the parties to resolve the issue between themselves. If they cannot agree, TL may file a costs memorandum within 28 days, and Ms Elt has 14 days thereafter to respond. The Authority indicated it would assess costs on its usual daily tariff basis if required to do so.

The claim was upheld in full on the substantive issues: a compliance order and a $2,000 penalty were granted in favour of TL, with costs reserved for later determination.

Compliance Order: Ms Elt is ordered to return all company property (MacBook Air laptop and iPhone 12) to TL within 7 days of the determination date (10 August 2026).
Penalty: Ms Elt is ordered to pay $2,000 to TL within 28 days of the determination date.
Costs: Reserved. TL may file a costs memorandum within 28 days if the parties cannot agree; Ms Elt has 14 days to file a reply thereafter.

[COSTS ONLY]

This is a costs determination arising from an earlier Employment Relations Authority finding (dated 22 July 2026) that Nirali Bhatt had been unjustifiably disadvantaged in her employment with Prishal Limited. The sole question is the appropriate level of costs to award to the successful applicant, given the respondent's claimed financial hardship. The Authority ordered a reduced costs contribution of $3,000.00, payable by instalments if agreed.

Applicant: Nirali Bhatt (employee)
Respondent: Prishal Limited (First Respondent/employer), Utkarsh Deota (Second Respondent), Vishal Patel (Third Respondent)

Applicant: Robert Morgan, advocate
Respondent: Mitali Bhatt, representing the Respondent

The underlying determination ([2026] NZERA 492, dated 22 July 2026) found that Nirali Bhatt had been unjustifiably disadvantaged in her employment with Prishal Limited. The investigation meeting ran for one and a partial day. Costs were reserved in the original determination to allow the parties to settle the issue between themselves, but they were unable to do so. The applicant's advocate submitted that a costs contribution of $5,500.00 was appropriate. The respondents opposed any costs award, submitting that payment would cause severe financial hardship, evidenced by bank statements showing ongoing loan repayments related to the failed business in which Ms Bhatt had worked. The Authority also noted an emotional dimension arising from a close family relationship between the parties.

1. Whether costs should be awarded to the successful applicant, and if so, at what level — Status: Established (paras [6]-[11]).

The Authority applied the discretionary costs framework under clause 15 of Schedule 2 of the Employment Relations Act 2000, recognising that financial hardship of an unsuccessful party is a relevant but not decisive consideration. The Authority cited Toma v Checkmate Precision Cutting Tools Ltd [2015] NZ EmpC 2, which affirms that a balance must be struck between reducing an award due to impecuniosity and the countervailing interests of the successful party, and that broader public policy favours some costs award to the successful party. The Authority accepted the respondents were in genuine financial difficulty and that the family relationship added an emotional dimension, but held that the applicant as the successful party was entitled to some recompense. A reduced contribution of $3,000.00 (below the $5,500.00 sought) was ordered.

2. Whether the costs award should be payable by instalments — Status: Conditional (para [12]).

The Authority noted the respondents' request to pay by instalments and directed the parties to discuss and agree a reasonable instalment plan themselves. Leave was reserved for either party to return to the Authority for further orders if an instalment arrangement is agreed but not adhered to. No specific instalment schedule was imposed by the Authority at this stage.

The costs claim was partially upheld; costs of $3,000.00 were awarded to the applicant, reduced from the $5,500.00 sought, in recognition of the respondents' financial hardship.

Costs: $3,000.00 ordered against Prishal Limited (First Respondent) pursuant to clause 15 of Schedule 2 of the Employment Relations Act 2000, payable by instalments to be agreed between the parties; leave reserved to return to the Authority if instalment arrangements are not adhered to.

Aseem Sandhu, a former employee of Konstruk Limited (in liquidation), sought enforcement of a mediated record of settlement (ROS) against Kevin Tran, the company's director and personal guarantor under that ROS, after the remaining $6,675 (incl. GST) in advocate's costs owed under the agreement went unpaid. The key legal questions were whether a compliance order could be issued against Mr Tran personally under his guarantee, whether penalties and interest should be awarded, and whether costs should be granted. The Authority issued a compliance order against Mr Tran personally, adjourned the penalty question to allow time for compliance, declined to award interest, and ordered a costs contribution.

Applicant: Aseem Sandhu (employee/former employee)
Respondent: Konstruk Limited (in liquidation) (First Respondent, former employer); Kevin Tran (Second Respondent, director and personal guarantor)

Applicant: Danny Gelb, representative for the Applicant
Respondent: No appearance for the First and Second Respondents

Aseem Sandhu was formerly employed by Konstruk Limited. On 22 September 2025, the parties — including Kevin Tran as personal guarantor — entered into a mediator-certified ROS under s 149 of the Employment Relations Act 2000 (the Act). The ROS required Konstruk Ltd to pay Mr Sandhu a sum by instalments (cl 7, paid in full) and to pay his advocate's costs of $8,625 (incl. GST) by eight instalments between October 2025 and May 2026 (cl 8). Only $1,950 of the advocate's costs was paid, leaving $6,675 outstanding. The ROS provided that if any payment was missed, the full outstanding balance became immediately due (cl 9), and Mr Tran's personal guarantee (cl 10) made him personally liable within five days of any missed payment. Konstruk Ltd went into liquidation on 18 March 2026, and the liquidators declined consent to proceedings against the company; Mr Tran did not participate in the Authority's investigation despite repeated attempts to serve and contact him.

1. Whether the proceedings against Konstruk Limited (First Respondent) could continue given its liquidation — Status: Dismissed/Stayed (paras [3]).

Under s 248(c) of the Companies Act 1993, commencement of legal proceedings against a company in liquidation requires the liquidator's consent or a court order. The liquidators declined consent, so the proceeding against Konstruk Ltd was stayed. The Authority proceeded solely against Mr Tran in his personal capacity as guarantor.

2. Whether Mr Tran was personally liable for the outstanding $6,675 (incl. GST) under his personal guarantee in the ROS — Status: Established (paras [13]-[14], [17], [23]-[24]).

The ROS named Mr Tran as a party in his personal capacity as guarantor and cl 10 unconditionally guaranteed all employer payment obligations, making Mr Tran personally liable within five days of any missed payment. The Authority found the guarantee was clear and enforceable against Mr Tran personally. The liquidator's invitation for Mr Sandhu to file a claim in the liquidation was irrelevant to claims against Mr Tran personally.

3. Whether a compliance order under s 137 of the Act (as provided by s 151 of the Act) should be issued requiring payment of the outstanding $6,675 — Status: Established (paras [22]-[24], [35]-[36]).

Section 137(1)(a)(iii) of the Act empowers the Authority to order compliance where a party has not complied with a s 149 ROS. The Authority found the ROS had been breached, that the full outstanding balance was immediately due under cl 9, and that a compliance order against Mr Tran personally was appropriate under s 151(2)(a). Mr Tran was ordered to pay $6,675 within 28 days.

4. Whether penalties should be awarded for breach of the ROS (breach of s 149(4) of the Act) — Status: Adjourned/Conditional (paras [25]-[31]).

Under s 133 and s 149(4) of the Act, the Authority has jurisdiction to impose a penalty up to $10,000 for an individual for breach of a certified settlement. The Authority considered relevant factors under s 133A and cited Employment Court authorities including Borsboom v Preet PVT Ltd, Nicholson v Ford, and A Labour Inspector v Daleson Investment Limited. While finding a penalty appropriate in principle (the breach was ongoing since 1 December 2025 and caused Mr Sandhu an ongoing debt to his advocate), the Authority adjourned the penalty determination under s 138(5) of the Act to prioritise compliance, with leave reserved for Mr Sandhu to return if Mr Tran fails to comply with the compliance order.

5. Whether interest should be awarded on the outstanding amount — Status: Dismissed (para [32]).

The Authority declined to award interest because the outstanding amount was payable to Mr Sandhu's advocate (not directly to Mr Sandhu) and there was no evidence that interest was being charged to Mr Sandhu personally. Accordingly, no interest was ordered.

6. Whether a costs award should be made in favour of Mr Sandhu — Status: Established (paras [33]-[34], [36]).

Mr Sandhu claimed $3,622.50 (incl. GST) in representative costs for this enforcement application. The Authority found the actual costs exceeded the notional tariff, considered it prudent to resolve costs in this determination, and awarded a contribution of half the daily tariff ($2,250) plus reimbursement of the Authority filing fee of $71.55. The Authority did not award the full amount claimed.

The application was substantially upheld: a compliance order was issued against Mr Tran personally for the outstanding ROS amount; the penalty determination was adjourned with leave to return; interest was declined; and a partial costs award was made.

- Compliance order: Mr Tran ordered to pay $6,675 (incl. GST) to Mr Sandhu within 28 days of the determination (being the remaining advocate's costs owed under the ROS).
- Costs contribution: Mr Tran ordered to pay $2,250 (contribution to legal costs, being half the notional daily tariff) and $71.55 (reimbursement of Authority filing fee) within 28 days.
- Interest: None ordered.
- Penalties: Adjourned; leave reserved for Mr Sandhu to return to the Authority for a penalty determination if Mr Tran fails to comply.
- Reinstatement: None ordered.
- Note: Proceedings against Konstruk Limited (First Respondent) are stayed due to its liquidation.

Belinda de Zwart, General Manager People and Culture at Landpower Group Limited, brought personal grievance claims of unjustifiable disadvantage and unjustifiable dismissal following the disestablishment of her role during a restructuring process in late 2024. The key legal questions were whether the redundancy was genuine and free of ulterior motive, whether the consultation process complied with good faith obligations under s.4 of the Employment Relations Act 2000, and whether redeployment was adequately explored. The Authority found the redundancy was genuine but that significant procedural defects and good faith breaches resulted in unjustifiable disadvantage, awarding $20,000 compensation for hurt and humiliation while declining lost wages and a good faith penalty.

Applicant: Belinda de Zwart (employee — former General Manager People and Culture)
Respondent: Landpower Group Limited (employer)

Applicant: Shaun Brookes, counsel for the Applicant
Respondent: Penny Shaw, counsel for the Respondent

Belinda de Zwart commenced employment with Landpower Group Limited on 19 July 2021, ultimately as General Manager People and Culture, earning $291,250 per annum, and her employment ended on 11 October 2024. From mid-2023 onwards, tension developed in her working relationship with CEO Richard Wilson, centred on disagreements about strategic priorities, health and safety governance, and the handling of recommendations following a workplace fatality in late December 2023. In mid-2024, Landpower faced financial pressure and its board approved cost-saving measures including a restructure of the People and Culture (P&C) team; Ms de Zwart's role was proposed for disestablishment in a consultation letter dated 3 September 2024, with a decision communicated on 19 September 2024 and employment terminated on 27 September 2024. Ms de Zwart alleged the process was procedurally deficient, that good faith obligations were breached (including failure to share the 14 August board paper and premature decision-making), and that redeployment options — notably a General Manager role in Eastern Australia — were not properly explored. Landpower contended the redundancy was genuine, driven by legitimate commercial and structural imperatives, and that a fair process including consultation and redeployment offers was followed. The parties did not resolve matters at mediation on 25 March 2025, and an investigation meeting was held on 28–29 April 2026.

1. Whether Ms de Zwart was unjustifiably dismissed or unjustifiably disadvantaged — whether the redundancy was genuine and free of ulterior motive — Status: Partially established (paras [73]-[92]).

The Authority applied the s.103A test from the Employment Relations Act 2000, requiring assessment of what a fair and reasonable employer would have done in all the circumstances, guided by the Court of Appeal's ruling in Grace Team Accounting v Brake that a redundancy must be based on genuine business requirements and not used as a pretext. The Authority found the cost-cutting and organisational change rationale was genuine and did not involve an ulterior motive to remove Ms de Zwart, rejecting her contention that the restructure was predetermined or driven by personal animus. However, it found significant procedural defects in the consultation process and redeployment obligations, resulting in unjustifiable disadvantage rather than unjustifiable dismissal on the basis of ulterior motive.

2. Whether Landpower breached good faith obligations under s.4 of the Act in the consultation process — Status: Established (paras [76]-[86], [91]-[92]).

The Authority applied s.4 of the Employment Relations Act 2000, which imposes a positive disclosure obligation and requires genuine pre-decision consultation as articulated in Stormont v Peddle Thorp Aitken Ltd, meaning consultation must be real, not a charade, with sufficiently precise information provided in a timely manner and an open mind maintained. The Authority found several breaches: Mr Wilson should have consulted Ms de Zwart before taking the 14 August board paper (or at minimum disclosed it thereafter); Ms de Zwart's extension request was unreasonably refused; the consultation was rushed; Mr Wilson was insufficiently candid about his intention to assume the strategic HR and H&S functions; and the process effectively bound itself to a predetermined outcome by communicating structural changes to the regions before feedback was considered. These breaches were found to be significant, contributing to Ms de Zwart being unjustifiably disadvantaged and the dismissal falling outside what a fair and reasonable employer would do.

3. Whether Landpower satisfied its redeployment obligations under the employment agreement and case law — Status: Established (paras [86]-[90]).

The Authority applied the good faith duty in s.4(1A)(c) of the Act and the framework from NZ Steel Ltd v Haddad (citing Jinkinson v Oceana Gold), which requires employers restructuring to actively consider and explore redeployment, consult in good faith about options, and have that decision assessed under s.103A. The Authority found Landpower failed to actively and constructively engage with redeployment: the General Manager Eastern Australia vacancy was not offered or genuinely explored despite Ms de Zwart's willingness to relocate and prior indication of interest; the only option offered (a Customer Experience Specialist role at approximately 36% of her salary) had already been declined by a colleague and lacked a position description; and Ms de Zwart's "parachute clause" proposal was rejected without adequate explanation. The Authority also found an abrupt termination in lieu of notice denied Ms de Zwart the opportunity to complete professional obligations with dignity, compounding the procedural unfairness.

4. Whether Ms de Zwart was unjustifiably dismissed (as opposed to unjustifiably disadvantaged) on the basis of an ulterior motive — Status: Dismissed (paras [85], [91], [97]).

The Authority considered whether the restructuring was a pretext to remove a disliked employee, applying the Grace Team Accounting v Brake standard. Despite evidence of tension in the working relationship and implied criticism of Ms de Zwart's work by the business owner, the Authority was not convinced the predominant or ulterior motive was to remove her; rather, it accepted the financial and organisational rationale was genuine. The unjustifiable dismissal claim as framed on ulterior motive was accordingly not established, though the dismissal was nonetheless found unjustifiable by reason of procedural defects.

5. Compensation for hurt, humiliation, and distress under s.123(1)(c)(i) — Status: Established (paras [93]-[95]).

The Authority assessed the impact of the dismissal on Ms de Zwart, including loss of confidence, injury to feelings, alienation, and the undignified manner of exit, against the mitigating factor that she secured comparable alternative employment relatively quickly (during her in-lieu-of-notice period) at a reasonably comparable salary. Considering the circumstances and comparable Authority awards, the Authority fixed compensation at $20,000.

6. Lost wages under s.123(1)(c)(ii) — Status: Dismissed (paras [96]-[97]).

Ms de Zwart claimed the salary differential between her former role ($291,250 p.a.) and her new role ($250,000 p.a.) from the date of dismissal to the investigation meeting. The Authority declined this claim, reasoning that because the redundancy was genuine and not driven by ulterior motive, at best Ms de Zwart had lost an opportunity to be redeployed to an alternative position rather than suffering lost wages from an unjustified dismissal. No lost wages order was made.

7. Penalty for breach of good faith under s.4A — Status: Dismissed (para [98]).

The Authority considered whether the identified good faith breaches warranted a penalty under s.4A(a) of the Act, which requires the breach to be deliberate, serious, or sustained. The Authority declined, finding the omission to redeploy and other procedural defects, while significant, did not meet that threshold: Landpower had sought specialist advice, offered an alternative position, provided counselling and transition support, and Mr Wilson genuinely (if incorrectly) believed the Australian role required specific sales expertise Ms de Zwart lacked.

8. Whether any remedy should be reduced for contribution by Ms de Zwart under s.124 — Status: Dismissed (para [99]).

The Authority found no basis to reduce the remedy under s.124, as Ms de Zwart had not engaged in any wrongful, blameworthy, or culpable conduct that contributed to the grievance. The Authority also noted this was a no-fault redundancy termination.

9. Costs — Status: Reserved (paras [101]-[104]).

Costs were reserved, with parties encouraged to resolve the matter themselves. If unresolved, Ms de Zwart may file a costs memorandum within 28 days of the determination, with Landpower having 14 days to reply. The Authority indicated costs would be assessed on its usual basis.

The claim was partially upheld: unjustifiable disadvantage established and compensation awarded; lost wages claim, good faith penalty, and contribution reduction all dismissed.

Compensation (hurt/humiliation/distress, s.123(1)(c)(i)): $20,000
Lost wages: None ordered
Penalty for breach of good faith: None ordered
Reinstatement: Not sought or ordered
Costs: Reserved (parties to resolve or file memoranda within prescribed timeframes)

Youngmin Lee and Youngsook Sang, a South Korean married couple employed as kitchen hands by JMT Magical Food NZ Limited (a sushi outlet operator), brought claims for wage arrears, holiday pay arrears, recovery of $223,058.25 as an alleged unlawful premium, and various penalties. The central legal questions were whether the applicants were genuine employees during the disputed period, whether payments made to the respondents constituted an unlawful employment premium, and whether penalties were warranted. The Authority found the applicants were employees but that their additional work was performed as de facto owner-operators of the business, dismissed the wage arrears and unlawful premium claims, and ordered a $2,000 penalty against JMT for failing to maintain wages and time records.

Applicant: Youngmin Lee (employee/applicant) and Youngsook Sang (employee/applicant)
Respondent: JMT Magical Food NZ Limited (employer/first respondent); Hye Lim Yi (second respondent); Jihoon Choi (third respondent)

Applicant: Seungmin Kang, counsel for the Applicants
Respondent: Tony Sung, counsel for the Respondents

Youngmin Lee and Youngsook Sang are a married couple who emigrated from South Korea to Tauranga in February 2023, where they met Hye Lim Yi and Jihoon Choi (owners of JMT), a sushi outlet and grocery business operating under the "Melting Pot" name, through a local church. Ms Sang began working informally for JMT from August 2023, and both applicants subsequently obtained accredited employer work visas with JMT's support (Mr Lee's approved December 2023, Ms Sang's March 2024). In September 2023, the parties entered into an arrangement for the applicants to purchase the Melting Pot Mount Maunganui outlet, making payments totalling $223,085.25 and assuming de facto operational control from 1 November 2023. The applicants claimed these payments were an unlawful premium for employment, and sought wage arrears (Mr Lee: $34,839 gross; Ms Sang: $39,196 gross) on the basis they worked approximately 50 hours per week without full remuneration. The respondents disputed that any genuine employment relationship existed during the period of ownership, characterising the payments as purchase price and capital injections, and the applicants' role as de facto owner-operators rather than employees.

1. Whether the applicants were employees of JMT during the disputed period (1 November 2023 – 31 October 2024) — Status: Partially established (real nature of relationship as employees confirmed, but with significant owner-operator dimensions).

The Authority applied the s 6(2) Employment Relations Act 2000 test as elaborated in Bryson v Three Foot Six Ltd and Rasier Operations BV v E-Tū Inc [2025] NZSC 162, requiring sequential consideration of: (a) the terms of engagement and common intention; (b) how the work operated in practice; and (c) the control, integration, and fundamental tests. The Authority found a common intention for an employment relationship evidenced by written employment agreements submitted to INZ, and that the applicants were paid wages with PAYE deducted. However, applying the fundamental test, the Authority found the applicants were simultaneously de facto owner-operators of the Melting Pot Mount outlet — bearing economic risk and enjoying profit — concluding that two parallel bargains existed: a genuine employment relationship and an owner-operator arrangement.

2. Whether the applicants are owed arrears of wages for hours worked but not remunerated — Status: Dismissed.

The Authority found that the extra hours worked by Mr Lee and Ms Sang beyond their employment agreement minimums were performed in their capacity as de facto owner-operators, not as employees, and that the owner-operator bargain carried no obligation on JMT to pay wages for that additional work. Because the applicants were correctly paid for their contracted hours under the employment agreements, no wage arrears arose. The Authority relied on s 132(2) of the Act (raised by applicants due to absent records) but found the substantive conclusion negated any wage arrears claim regardless.

3. Whether the applicants are owed arrears of holiday pay — Status: Dismissed.

The applicants appeared to accept during the proceedings that final holiday pay had been paid by the respondents (albeit without admission of liability and stated to be solely to mitigate litigation risk). The Authority therefore found no holiday pay arrears were owed and consequently no Holidays Act breaches were established.

4. Whether the payments of $223,058.25 (or $223,085.25) made by the applicants to the respondents constituted an unlawful premium under s 12A(1) of the Wages Protection Act 1983 — Status: Dismissed.

The Authority applied the test from Holman v CTC Aviation Training NZ Limited, requiring: (a) the payment is a condition for obtaining employment, without which employment will not be obtained; and (b) the payment benefits the employee only by obtaining employment. The Authority found these requirements were not met: Ms Sang was already employed before the payments commenced; Mr Lee had already accepted an employment offer before the first payment was made; and the payments provided a clear commercial benefit (an ownership interest in the Melting Pot Mount outlet and/or capital injections) beyond mere employment. The Authority found on the balance of probabilities that the payments related to the ownership interest and/or capital injections, not to an employment premium.

5. Whether JMT should be ordered to pay a penalty for failing to keep and maintain a compliant wages and time record under s 130 of the Act — Status: Established.

The Authority found JMT had a statutory obligation under s 130 of the Act to keep wages and time records for the applicants as employees, and that it had clearly failed to do so. Mr Choi's evidence conceded this, and JMT's breach was found to be intentional (not inadvertent), as JMT had previously kept records for Ms Sang's early employment period but ceased after the applicants assumed de facto ownership. Applying the penalty principles from Labour Inspector v Preet Pvt Limited [2016] NZEmpC 143, Labour Inspector v Prabh Limited [2018] NZEmpC 110, and Labour Inspector v Daleson Investment Limited [2019] NZEmpC 12, and considering all s 133A factors, the Authority imposed a global penalty of $2,000 (from a maximum of $20,000, discounted by 50% then a further 40% for absence of prior conduct and the relative seriousness of the breach), to be paid to the applicants.

6. Whether JMT should be required to pay a penalty under s 134(1) of the Act for breaching the applicants' employment agreements by failing to pay their full wages — Status: Dismissed.

Because the Authority found no wage arrears were owed (the extra work was performed under the owner-operator bargain, not the employment agreement), no breach of the employment agreements in relation to wages was established, and accordingly no penalty under s 134(1) arose.

7. Whether JMT should be required to pay a penalty under ss 27(1)(b) and 75 of the Holidays Act 2003 for failing to pay holiday pay upon termination — Status: Dismissed.

As the Authority found no holiday pay arrears were owed (holiday pay having been paid), no breach of the Holidays Act was established and no penalty arose.

8. Whether JMT should be required to pay a penalty under ss 12A and 13 of the Wages Protection Act 1983 for receiving unlawful premium payments — Status: Dismissed.

The Authority found the payments were not an unlawful premium (see issue 4 above), so no Wages Protection Act breach was established and no penalty under those provisions arose.

9. Whether leave should be granted under s 142Y of the Act to recover wage arrears and/or the premium from the second respondent (Hye Lim Yi) and/or third respondent (Jihoon Choi) personally as persons involved in breaches of employment standards — Status: Not reached.

Because neither wage arrears nor unlawful premium claims were established, there was no basis for granting leave to recover such sums from Yi or Choi personally, and the Authority did not need to consider this issue further.

10. Whether the second and third respondents (Yi and Choi) should be required to pay a penalty under s 134(2) of the Act for aiding and abetting breach of the applicants' employment agreements by failing to pay wages in full — Status: Dismissed.

Because the wage arrears claim was not established, there was no established breach of the employment agreements in relation to wage payments, and accordingly no basis for a penalty against Yi or Choi for aiding and abetting such a breach.

11. Whether a non-publication order should be made in respect of certain financial information — Status: Established.

Under cl 10(1) of the Second Schedule to the Act, the Authority made non-publication orders over all financial information relating to JMT's business (including the Melting Pot sushi outlets), purchase price negotiations, and business valuations, finding there was no public interest in publication of this commercially sensitive information. This was unopposed by the applicants.

12. Whether costs should be awarded — Status: Reserved.

The Authority reserved the issue of costs and encouraged the parties to resolve costs between themselves, providing a memorandum process if agreement cannot be reached. Costs will be determined on the Authority's usual daily tariff basis unless circumstances warrant adjustment.

The claims were partially upheld — the wage arrears, holiday pay, unlawful premium, and associated penalty claims were all dismissed; only the penalty for failure to keep a wages and time record was upheld, with a $2,000 penalty ordered against JMT.

Penalty (wages and time record breach, s 130 Act): $2,000, payable by JMT Magical Food NZ Limited to Youngmin Lee and Youngsook Sang (apportionment between them at their discretion), within 28 days of the determination date.
All other remedies sought (wage arrears, holiday pay arrears, premium repayment, all other penalties, personal liability of Yi and Choi): None ordered.
Costs: Reserved.

Briar Kennedy, a Bartender employed by Adulto HR Limited from February 2024, brought a personal grievance for unjustified dismissal after her employment was terminated on 31 May 2024. The key legal questions were whether her employment was subject to a valid trial or probationary period, and whether her dismissal was substantively and procedurally justified. The Authority found no valid trial or probationary period existed, that the dismissal was unjustified, and awarded Ms Kennedy $14,900 in lost wages and $16,000 in compensation.

Applicant: Briar Kennedy (employee)
Respondent: Adulto HR Limited (employer)

Applicant: Paul Mathews, advocate
Respondent: Peter Cooper (for the Respondent)

Briar Kennedy commenced employment with Adulto HR Limited on 24 February 2024 as a Bartender, with an intention to transition into a Duty Manager role. Her Individual Employment Agreement (IEA), signed on 28 February 2024, did not contain a trial or probationary period clause, although the accompanying offer letter erroneously stated a 90-day trial period was included. On 3 May 2024, a progress review meeting raised numerous performance concerns with Ms Kennedy; a Progress Review document purported to extend a "trial period on probation" by four weeks. On 31 May 2024, following complaints from contractors about an overnight incident, Ms Kennedy was called to a meeting (conducted in Ms Cooper's absence) and her employment was terminated with immediate effect, based on alleged ongoing poor performance. Ms Kennedy disputed the performance concerns, argued she had received inadequate support and training, and contended the dismissal was procedurally unfair and predetermined.

1. Whether Ms Kennedy's employment was subject to a valid trial period under s 67A of the Employment Relations Act 2000 — Status: Dismissed (paras [41]-[47]).

Section 67A requires a trial provision to be a written provision in the employment agreement, and the employee must not have previously been employed by the employer at the time of signing. The IEA contained no trial period clause; the offer letter's reference to one was insufficient as it is not an "employment agreement" under s 5 and did not include the required statutory contents. Furthermore, Ms Kennedy signed the IEA after commencing employment, violating s 67A(1)'s requirement that the agreement be entered into before work begins (citing Smith v Stokes Valley Pharmacy). Additionally, the Act does not permit extension of a trial period beyond 90 days, and Ms Kennedy's termination occurred 97 days after commencement. The Authority found no valid trial period existed.

2. Whether Ms Kennedy's employment was subject to a valid probationary period — Status: Dismissed (paras [48]-[50]).

The IEA contained no probationary period clause, nor any clause that could reasonably be interpreted as providing for an initial assessment period. The Employee Handbook stated that probationary period details must be set out in the employment agreement. The Authority held that a probationary period cannot be implied or created retrospectively by an employer's purported extension of a non-existent trial period. For completeness, the Authority noted that even if a probationary period had existed, Adulto would still have been required to justify the dismissal under s 103A of the Act.

3. Whether Adulto's purported reliance on Ms Kennedy's failure to obtain an LCQ justified dismissal — Status: Dismissed (paras [53]-[57]).

The Authority found that the LCQ failure was not the true motivation for dismissal, as the termination meeting focused on unsuitability for the Duty Manager role and general performance, not LCQ non-completion. In any event, Adulto could not rely on the IEA's LCQ requirement without first clearly setting a deadline, as the parties had not treated that requirement as immediately operative and Ms Kennedy had taken active steps to arrange the course. The Authority held this could not provide a valid basis for dismissal.

4. Whether Ms Kennedy was justifiably dismissed for poor performance under s 103A of the Employment Relations Act 2000 — Status: Dismissed (paras [51]-[75]).

Section 103A requires an objective assessment of whether the employer's actions, and the way it acted, were what a fair and reasonable employer could have done in all the circumstances. The Authority found multiple substantive and procedural failures: Adulto did not give Ms Kennedy advance notice of concerns before the 3 May 2024 meeting; it failed to implement a performance improvement plan, set measurable targets, or schedule check-ins; it never explicitly warned her that her employment was at risk; it relied on contractor complaints never disclosed to Ms Kennedy; and it assessed her against Duty Manager standards before she had transitioned into that role. The Authority also found the decision was predetermined, with Ms Cooper having formed the view that the relationship could not continue before the termination meeting, and the meeting being conducted to communicate a decision rather than invite genuine response. The dismissal was found unjustified.

5. Whether Adulto's decision to dismiss was predetermined — Status: Established (paras [72]-[74]).

Ms Cooper had communicated to Mr Cooper before the meeting that she was at her "wits' end" and could no longer deal with the situation, indicating the outcome was already decided. Ms Cooper then absented herself from the meeting, the letter was issued in both their names despite her non-attendance, and Mr Cooper informed Ms Kennedy at the outset that there was no role for her before any discussion of concerns. The Authority found predetermination was established, reinforcing the procedural unfairness finding.

6. Whether Ms Kennedy is entitled to lost remuneration under ss 123 and 128 of the Act — Status: Established (paras [77]-[82]).

Sections 123 and 128 provide for reimbursement of lost remuneration, ordinarily capped at three months, but s 128(3) preserves discretion to award more where actual loss exceeds that amount. The Authority accepted Ms Kennedy did not obtain paid employment until 9 December 2024 (approximately 25 weeks after her effective termination date of 14 June 2024), that she appropriately mitigated by consistently applying for work, and that all lost remuneration in that period was attributable to the dismissal. The Authority exercised its s 128(3) discretion to award 25 weeks at $596 per week (her average weekly earnings), totalling $14,900 gross.

7. Whether Ms Kennedy is entitled to compensation for hurt, humiliation, and injury to feelings under s 123(1)(c)(i) of the Act — Status: Established (paras [83]-[85]).

The Authority assessed the harm caused by the unjustified dismissal, guided by Employment Court authorities including Stormont v Peddle Thorp Aitken, Waikato DHB v Archibald, Richora Group v Cheng, and GF v Comptroller of NZCS. Ms Kennedy experienced negative mental health impacts including migraines, stress-related chest pains, hyperventilation, social withdrawal, and emotional distress, though no medical evidence or evidence of professional support was provided. The Authority characterised the harm as moderate and awarded $16,000 compensation.

8. Whether Ms Kennedy's own conduct contributed to the situation giving rise to the grievance, warranting a reduction in remedies under s 124 of the Act — Status: Dismissed (para [86]).

Section 124 requires the Authority to consider the employee's contributory conduct. Adulto did not establish any conduct by Ms Kennedy warranting a reduction; its allegations were not substantiated. No reduction was applied.

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

The Authority reserved costs and encouraged the parties to resolve the issue between themselves. If unresolved, Ms Kennedy may file a memorandum on costs within 28 days, with Adulto having 14 days to reply. Costs, if determined by the Authority, will be assessed on the standard daily tariff basis unless circumstances require adjustment.

The claim was upheld in full: Ms Kennedy's unjustified dismissal grievance was established, with no reduction for contribution, and remedies awarded in lost wages and compensation.

Lost wages: $14,900 gross (25 weeks × $596 per week, pursuant to ss 123 and 128(3) of the Act, payable within 28 days).
Compensation (hurt/humiliation/injury to feelings): $16,000 pursuant to s 123(1)(c)(i) of the Act, payable within 28 days.
Contribution reduction: None applied.
Reinstatement: Not ordered (not sought).
Costs: Reserved; parties encouraged to resolve between themselves, with a memorandum process outlined if agreement is not reached.

James Doyle, a long-serving production supervisor at New Zealand Steel Limited's Waikato North Head mine site, was summarily dismissed in May 2026 for serious misconduct relating to the incorrect recording of up to 40 days of leave over a three-year period. He applied for interim reinstatement under s 127 of the Employment Relations Act 2000, arguing unjustified dismissal, unjustified suspension, and health and safety failures during the disciplinary process. The Authority declined interim reinstatement, finding that while an arguable case existed for the personal grievance, permanent reinstatement was unlikely and both the balance of convenience and overall justice weighed against the interim order.

Applicant: James Doyle (employee, production supervisor)
Respondent: New Zealand Steel Limited (employer)

Applicant: Digna Toresen, advocate
Respondent: Carter Pearce, counsel

Mr Doyle commenced employment with New Zealand Steel Limited and related BlueScope Group entities in 2006 and was appointed as a production supervisor at the Waikato North Head mine site in May 2013, a role he held for over 20 years in total. Production supervisors at the site operated in a self-managing leave environment, responsible for recording their own hours and leave for submission to payroll without direct managerial oversight — a system in place since 2009. An internal audit at the end of 2024 revealed discrepancies in Mr Doyle's leave records, covering up to 40 days of leave over the period 2021–2024 that were allegedly not correctly recorded. Disciplinary proceedings were delayed because Mr Doyle was on long-term sick leave, returning in July 2025; the discrepancies were first put to him on 21 April 2026. He was summarily dismissed on 19 May 2026 for serious misconduct. Mr Doyle lodged a personal grievance claiming unjustified dismissal (alleging predetermination and inadequate investigation), unjustified suspension, and breach of health and safety obligations during the disciplinary process. Despite multiple extensions, Mr Doyle failed to file sworn affidavit evidence or submissions in support of his interim reinstatement application; the Authority proceeded on the papers based on NZS's evidence and submissions.

1. Whether Mr Doyle has an arguable case for unjustified dismissal — Status: Established (paras [29]-[31]).

The threshold for an arguable case is low: the claim must not be frivolous or vexatious, and need not have certain prospects of success (citing X and Y Limited v New Zealand Stock Exchange [1992] 1 ERNZ 863 and Brooks Homes Ltd v NZ Tax Refunds Ltd [2013] NZSC 60). The Authority noted that disputed substantive and procedural matters remained to be investigated and that no evidence was actually received from Mr Doyle to support his claims of predetermination or procedural failure. Nonetheless, on the low threshold applicable, the Authority was satisfied that the claim was not frivolous or vexatious and met the threshold for an arguable personal grievance.

2. Whether Mr Doyle has an arguable case for permanent reinstatement — Status: Dismissed (paras [32]-[36]).

The Authority applied the requirement that an applicant for interim reinstatement must show not only an arguable dismissal claim but also that reinstatement would be available as a remedy if successful. Under s 123B of the Employment Relations Act 2000, reinstatement cannot be ordered where the employee's contributing behaviour amounts to serious misconduct. Mr Doyle acknowledged errors in leave recording, and the evidence comfortably established he contributed to the situation; however, the Authority found insufficient evidence at this stage to determine whether that conduct constituted "serious misconduct," so s 123B was not applied. Regardless, the Authority concluded that permanent reinstatement was unlikely given the breakdown of trust with fellow supervisors (as evidenced by Mr Simmons' affidavit), the self-managing leave environment requiring full trust in accurate record-keeping, and Mr Doyle's leadership and payroll approval responsibilities — making this leg of the test not satisfied.

3. Whether the balance of convenience favours interim reinstatement — Status: Dismissed (para [37]).

The Authority assessed the relative detriment to both parties of granting or declining the interim order. Mr Doyle had alluded to health concerns that could affect his capacity to perform duties, but provided no supporting information, leaving NZS unable to meet its health and safety obligations if he were reinstated. Conversely, the evidence from Mr Simmons established real detriment to team operations and shift management in the self-managing work environment if Mr Doyle were returned. The Authority accepted NZS's submission that the balance of convenience weighed in its favour.

4. Whether overall justice of the case supports interim reinstatement — Status: Dismissed (paras [38]-[39]).

The Authority considered whether the overall justice of the situation warranted an interim order (applying NZ Tax Refunds Limited v Brooks Homes Limited [2013] NZCA 90). Mr Doyle claimed financial hardship, but NZS submitted he had received a considerable sum in his final pay and he provided no evidence to substantiate the financial hardship claim. The mismatch between those positions, combined with Mr Doyle's failure to engage in the proceedings or provide supporting evidence despite multiple extensions, led the Authority to conclude that overall justice did not weigh in favour of interim reinstatement.

5. Whether Mr Doyle was unjustifiably suspended — Status: Not reached (para [8]).

This claim, raised in Mr Doyle's statement of problem, was noted by the Authority but expressly reserved for the substantive investigation. The interim determination did not address its merits.

6. Whether NZS breached its health and safety obligations during the disciplinary process — Status: Not reached (para [8]).

This claim was similarly noted but not addressed in this interim determination, being reserved for the substantive investigation.

7. Costs — Status: Conditional/reserved (para [43]).

The Authority reserved costs until the substantive hearing or until the matter is no longer before the Authority.

The application for interim reinstatement was declined in full; the substantive personal grievance claims (unjustified dismissal, unjustified suspension, and health and safety breaches) remain to be determined at a further investigation, to be progressed via a case management conference.

None ordered at this stage. Interim reinstatement declined. Costs reserved pending the substantive hearing or resolution of the matter. A case management conference is to be scheduled to progress the substantive investigation.

Pesamino Ah Lam (employee) brought claims against Ramp Contracting Limited, Robert Cameron, and Melissa Cameron arising from an employment relationship problem. The first respondent company was placed into liquidation, preventing the claims against it from proceeding, and the applicant failed to appear at the investigation meeting. With no evidence before the Authority, all claims were dismissed.

Applicant: Pesamino Ah Lam (employee)
Respondent: Ramp Contracting Limited (In Liquidation) (First Respondent/employer); Robert Cameron (Second Respondent); Melissa Cameron (Third Respondent)

Applicant: Emma Brankin, advocate (firm not stated)
Respondent: Robert Cameron, appearing for the Respondents (no counsel named for Robert and Melissa Cameron; prior counsel had ceased to act)

Pesamino Ah Lam commenced proceedings in the Authority against Ramp Contracting Limited and its principals Robert and Melissa Cameron in relation to several employment relationship problems. The company accepted some elements of the applicant's claim but advanced a counterclaim; Robert and Melissa Cameron each disputed personal liability. Mediation was directed but did not take place. On 19 February 2026, the company was placed into liquidation, and counsel for the respondents advised she was no longer instructed; by operation of s 248 of the Companies Act 1993, the claims against the company could not proceed. The claims against the two individual respondents remained live. At the investigation meeting on 7 August 2026, the applicant failed to appear; his advocate was unable to contact him or explain his absence. With no evidence presented, the Authority dismissed all remaining claims.

1. Whether claims against Ramp Contracting Limited (In Liquidation) could proceed — Status: Dismissed (para [4]).

Section 248 of the Companies Act 1993 operates to stay proceedings against a company in liquidation. The Authority noted that upon the company being placed into liquidation on 19 February 2026, the claims against it could not proceed. No substantive analysis of the merits was undertaken; the claims were extinguished as a matter of law.

2. Whether claims against Robert Cameron and Melissa Cameron should be determined — Status: Dismissed (paras [6]–[7]).

The individual respondents disputed personal liability. The claims against them remained on foot following the company's liquidation, but the applicant failed to appear at the investigation meeting and his advocate was unable to contact him or provide any explanation. In the absence of any evidence, the Authority exercised its discretion to dismiss the claims rather than adjourn further. No merits assessment of personal liability was conducted.

All claims were dismissed in their entirety due to the applicant's failure to appear and present evidence, and the statutory stay of proceedings against the company in liquidation.

None ordered.

Dr Ni Ding, a former lecturer in the School of Computer Science at the University of Auckland, applied for interim reinstatement following her resignation on 6 May 2025, which she claims was a constructive dismissal caused by an intolerable work environment. The key legal questions were whether reinstatement remained an available remedy under the recently amended Act, and whether the three-stage interim reinstatement test (arguable case, balance of convenience, overall justice) was satisfied. The Authority found that while Dr Ding established an arguable case for unjustified constructive dismissal and permanent reinstatement, the balance of convenience and overall justice favoured the University, and her application for interim reinstatement was dismissed.

Applicant: Dr Ni Ding (employee, former lecturer)
Respondent: The Vice-Chancellor of the University of Auckland (employer)

Applicant: Catherine Stewart and Rebecca Stewart, counsel for the Applicant
Respondent: Lucy Jenkins and Isabella Peacock-Price, counsel for the Respondent

Dr Ni Ding was employed as a lecturer in the School of Computer Science at the University of Auckland from 9 October 2023. On 6 May 2025 she resigned by email, citing an intolerable work environment she attributes primarily to bullying and harassment by her Head of School, Professor Russello, including a key incident on 25 October 2024, escalating pressure through early 2025, and a series of emails during a busy publication period culminating in the evening of her resignation. Dr Ding promptly sought to rescind her resignation, repeatedly requesting the University allow her employment to continue, but the University declined to rescind; her employment ended on 29 November 2025 after a series of extended notice periods. Dr Ding raised personal grievances for unjustified disadvantage and constructive dismissal and, following unsuccessful mediation, applied for interim reinstatement on 30 March 2026. The University opposed reinstatement on the grounds that it was neither reasonable nor practicable, and raised a preliminary issue as to whether reinstatement remained an available remedy following the introduction of s 123C of the Employment Relations Act 2000 by the Employment Relations Amendment Act 2026.

1. Preliminary issue — Whether reinstatement is an available remedy given the introduction of s 123C of the Employment Relations Act 2000 (in force 21 February 2026) — Status: Dismissed (paras [45]-[52]).

The University argued that because Dr Ding's application was lodged after s 123C came into force (which precludes reinstatement where the employee's conduct contributed to the situation giving rise to the grievance), reinstatement was not available either because remedies only arise after a grievance is determined, or because they cannot exist as freestanding rights before proceedings are filed. The Authority applied s 33 of the Legislation Act 2019, which preserves the completion of a "matter or thing relating to an existing right" notwithstanding legislative amendment. The Authority reasoned that within the personal grievance regime under the Act, parties are required to discuss the problem and its resolution together, so separating the problem from reinstatement as a proposed remedy is inconsistent with the regime; Dr Ding had consistently sought reinstatement from well before s 123C came into force. Accordingly, reinstatement remained an available remedy and the preliminary objection was rejected.

2. Whether Dr Ding has an arguable case for unjustified (constructive) dismissal — Status: Established (paras [53]-[59]).

The Authority applied the low threshold from Western Bay of Plenty District Council v McInnes: the claim must not be frivolous or vexatious, with some serious or arguable prospects of success. The test for justifiable dismissal under s 103A of the Act requires an objective assessment of whether the employer's actions were what a fair and reasonable employer could do in all the circumstances; the good faith obligations under s 4(1A)(b) are also relevant (citing FMV v TZB [2021] NZSC 102 and Simpsons Farms Ltd v Aberhart). The Authority noted that a resignation is a unilateral act assessed objectively (Urban Décor v Yu & Anor), but that constructive dismissal may arise where resignation results from the employer's actions. On the untested evidence before it, including Dr Ding's account of escalating pressure, sick leave, and the circumstances on the night of resignation, the Authority was satisfied the threshold was met, though acknowledged the plain reading of the resignation email remained a significant hurdle.

3. Whether Dr Ding has an arguable case for permanent reinstatement — Status: Established (paras [60]-[65]).

The Authority noted that reinstatement is the primary remedy under s 125(2) of the Act where it is practical and reasonable, and that it is insufficient for an employer to show resistance or strained circumstances to avoid it (citing Angus v Ports of Auckland and Air New Zealand Limited v Hudson). The question was whether the employment relationship could be feasibly re-imposed (Smith v Fletcher Concrete & Infrastructure Ltd). The Authority accepted that Dr Ding is highly skilled and sincerely wishes reinstatement, that workplace circumstances may change to remove or mitigate the alleged cause of harm, and that reinstatement must in law be possible even where constructive dismissal is claimed. A serious question to be tried on permanent reinstatement was established.

4. Balance of convenience — Status: Favours the Respondent/University (paras [66]-[73]).

The Authority weighed the detriment to each party if interim reinstatement were granted or refused, including the adequacy of damages. Dr Ding pointed to serious, irreversible harm to her early-career academic prospects, difficulty obtaining alternative employment, and financial hardship. The University pointed to the impracticality of reinstatement into an environment Dr Ding says harmed her, the risk of further conflict, pending conduct investigations, and the teaching schedule having been allocated. The Authority found the unresolved conflict between Dr Ding and the University, particularly the lack of resolution achieved during the six-month notice period, weighed significantly against reinstatement, because the risk of harm to Dr Ding on return remained. The Authority also found that financial loss and professional harm could potentially be addressed by remedies, and that the University's continued support of Dr Ding's PhD supervision somewhat mitigated professional detriment. The balance of convenience favoured the University. Delay was found to be a neutral factor.

5. Overall justice of the case — Status: Favours the Respondent/University (paras [74]-[75]).

Following the Court of Appeal's formulation in NZ Tax Refunds Limited v Brooks Homes Limited, the overall justice assessment operates as a check on the prior analysis. The Authority accepted that loss of employment is devastating to Dr Ding, but noted that her primary grievance is that the workplace itself caused her substantial harm, and it was not satisfied that any risk to her wellbeing on return could be sufficiently mitigated by short-term measures such as a change in immediate reporting line. On balance, overall justice did not favour interim reinstatement.

6. Procedural matter — Costs — Status: Reserved (para [77]).

The Authority reserved costs without making any order, with costs to be determined at a later stage.

7. Procedural matter — Case management and future investigation — Status: Conditional/deferred (para [76]).

The Authority directed that a case management conference be convened as soon as practicable to schedule an investigation meeting in November 2026 for the substantive hearing of Dr Ding's personal grievances.

The application for interim reinstatement was dismissed in full, with the substantive personal grievance claims to be heard at an investigation meeting to be scheduled for November 2026.

None ordered at this stage. Costs reserved. The substantive personal grievance claims (unjustified disadvantage and unjustified constructive dismissal) remain on foot for determination at a future investigation meeting.

[COSTS ONLY]

Emma Baldwin (employee) succeeded on an unjustified disadvantage claim but failed on unjustified dismissal and certain other claims against RJ Hospitality Solutions Limited (employer) in a June 2026 determination. The sole issue in this costs determination is what costs contribution, if any, Ms Baldwin should receive given her mixed success. The Authority awarded $2,250, half the notional daily tariff, reflecting both the absence of evidence of actual costs and Ms Baldwin's divided outcome.

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

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

In a substantive determination dated 26 June 2026, the Authority found Ms Baldwin was unjustifiably disadvantaged but not unjustifiably dismissed, ordering RJ Hospitality Solutions Limited (RJH) to pay $15,000 compensation plus arrears of wages and leave. Costs were reserved and parties were encouraged to resolve costs between themselves, but no agreement was reached. Ms Baldwin sought $4,500 as a costs contribution (the full notional daily tariff for one meeting day). RJH accepted some costs award was appropriate but argued the award should be reduced to reflect Ms Baldwin's failure on her unjustified dismissal claim, bullying claims, and the broadening of allegations over the course of proceedings. Ms Baldwin submitted that her actual legal costs exceeded the notional tariff but provided no documentary evidence of those costs.

1. Whether costs should be awarded to Ms Baldwin following her mixed success in the substantive proceedings — Status: Partially established (paras [3]-[12]).

The Authority's discretion to award costs is found in clause 15 of Schedule 2 of the Employment Relations Act 2000, exercised according to principles set out in PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808, including that costs usually follow the event, awards should be modest, and discretion must be exercised with equity and good conscience. The Authority acknowledged Ms Baldwin's success was mixed: she failed on unjustified dismissal, certain disadvantage claims including bullying, and breach of statutory good faith duty — all issues that consumed time at the investigation meeting. Citing Health Waikato Ltd v Elmsly [2004] 1 ERNZ 172, the Authority noted mixed-success cases are not rare and it would be neither fair nor proportionate to contribute to the cost of unsuccessful claims. A costs contribution of $2,250 (half the daily tariff) was awarded.

2. Whether the absence of evidence of actual legal costs affects the quantum of any award — Status: Established (paras [6]-[9]).

The Authority can only award the lesser of actual costs or a notional tariff-based contribution; without evidence of actual costs, that comparison cannot be properly made. The Authority noted that costs are also discretionary and must be fair and proportionate, so the absence of actual cost evidence necessarily counselled caution. Despite accepting Ms Baldwin's submission that actual costs exceeded the tariff, the Authority found it was left to assess the request "in a degree of abstraction" and factored this into reducing the award.

3. Whether the appropriate starting point for the costs contribution is the full notional daily tariff of $4,500 — Status: Established as starting point, reduced on application (paras [5], [10]-[12]).

Both parties accepted that one investigation meeting day, corresponding to a maximum contribution of $4,500, was the correct starting point under the current notional tariff rates. The Authority confirmed this starting point but reduced it to $2,250 to account for Ms Baldwin's mixed success and the lack of evidence of actual costs.

The costs claim was partially upheld; Ms Baldwin was awarded $2,250 as a contribution toward her costs, being half the notional daily tariff.

Costs contribution: $2,250 payable by RJH to Ms Baldwin within 28 days of the determination (7 August 2026).
No other remedies ordered (this determination addresses costs only; the substantive remedies of $15,000 compensation plus wage and leave arrears were ordered in the earlier 26 June 2026 determination).

Dr Duncan Connors, a former employee of the University of Otago, brought an employment relationship problem against the University alleging breach of a non-disparagement clause in a record of settlement and breach of the duty of good faith. The key legal questions concerned whether the University's email of 17 February 2026 was admissible as evidence and whether Dr Connors' claim was frivolous under clause 12A of Schedule 2 of the Employment Relations Act 2000. The Authority dismissed the claim on the basis that the email constituting the alleged breach was confidential and inadmissible under s 148 of the Act, leaving the claim with no evidential foundation.

Applicant: Dr Duncan Connors (employee/former employee)
Respondent: The Vice Chancellor of the University of Otago (employer)

Applicant: Self-represented (applicant in person)
Respondent: Malcolm Couling, counsel for the Respondent

Dr Connors had previously resolved an employment relationship problem with the University through two records of settlement (dated 18 September 2024 and 31 October 2025) and a consent determination. In February 2026, Dr Connors became the representative for a colleague (referred to as MIU) who had raised a personal grievance with the University. On 16 February 2026, Dr Connors raised concerns with mediation services about the University personnel attending the mediation; in response, on 17 February 2026, the University sent an email to mediation services referring to the consent determination and Dr Connors' prior conduct. Dr Connors interpreted this email as disparaging and as a breach of the non-disparagement clause in the Second ROS, and he also alleged the University breached its duty of good faith in failing to deal with his subsequent complaint appropriately. After the University's response failed to satisfy him, Dr Connors lodged a statement of problem with the Authority; the University filed a reply effectively applying to dismiss the claim as frivolous, citing the confidentiality and inadmissibility of mediation communications, the absence of an actual breach, and the fact that the remedies sought were outside the Authority's jurisdiction.

1. Whether Dr Connors' employment relationship problem should be dismissed as frivolous under clause 12A of Schedule 2 of the Employment Relations Act 2000 — Status: Established (paras [12]-[23]).

Clause 12A empowers the Authority to dismiss a matter it considers frivolous or vexatious at any time. Applying the test from Lumsden v Sky City Management Ltd [2015] NZEmpC 225, the Authority noted that all component parts of the matter must be frivolous, the assessment is objective, a matter is not frivolous merely because it has low prospects of success (it must trifle with the Authority's processes), and the threshold is high given the draconian nature of dismissal. The Authority found that because the primary evidence underpinning the claim was inadmissible (see Issue 2 below), the claim had no prospect of success and therefore trifled with the Authority's processes, making it frivolous. The claim was dismissed accordingly.

2. Whether the University's email of 17 February 2026 was inadmissible by reason of mediation confidentiality under s 148 of the Employment Relations Act 2000 — Status: Established (paras [17]-[19]).

Section 148(1) requires that communications and documents created for the purposes of mediation be kept confidential, and s 148(3) renders any such statement, admission, document, or information inadmissible in any court or before any person acting judicially. The Authority found that the University's email of 17 February 2026, sent to mediation services in the context of MIU's mediation, fell within s 148(d) as a communication by a person assisting a party to mediation services. Because the email was inadmissible, there was no evidential basis for Dr Connors to establish the events founding his claim, and the claim therefore could not succeed.

3. Whether the email of 17 February 2026 was also privileged under s 121 of the Employment Relations Act 2000 as a communication made in the course of personal grievance proceedings — Status: Established (para [20]).

The Authority observed (as a secondary, supporting basis) that s 121 of the Act provides privilege for communications made in the course of matters relating to a personal grievance, and that the University's email appeared to fall within that provision. This further reinforced the conclusion that the email could not be produced as evidence to support Dr Connors' claim. The Authority did not elaborate further on this point, treating it as additional confirmation of the inadmissibility conclusion.

4. Whether the University's email of 17 February 2026 constituted a breach of the non-disparagement clause in the Second Record of Settlement — Status: Not reached as determinative (para [22(a)]).

The University argued the email was not disparaging because it simply stated a factual position that was already publicly available through the Consent Determination. The Authority was willing to accept on the face of the papers that the email was not disparaging, but expressed reluctance to rely on this ground alone given the assessment was conducted on the papers without a full hearing. As the matter was already dismissed on the admissibility ground, this issue was not determinative.

5. Whether the remedies sought by Dr Connors (an apology and a charitable donation) were outside the Authority's jurisdiction — Status: Established as to jurisdiction but insufficient alone to ground dismissal (para [22(b)]).

The Authority accepted that the remedies sought — an apology from the University and a donation to a named charity — were outside the Authority's jurisdiction. However, it expressly held that this jurisdictional deficiency alone did not mean the employment relationship problem could not otherwise succeed, nor was it sufficient in itself to make the claim frivolous or to trifle with the Authority's processes. This ground therefore did not independently support dismissal.

6. Whether the duty of good faith was breached by the University in failing to deal appropriately with Dr Connors' complaint — Status: Not reached (paras [7], [16]-[21]).

Dr Connors alleged a breach of the duty of good faith under the Act in the University's handling of his complaint about the email. The Authority did not separately analyse this issue because the overall claim was dismissed as frivolous on the basis that the central evidence was inadmissible, leaving no evidential foundation for any aspect of the claim.

7. Costs — Status: Reserved (paras [24]-[26]).

The Authority reserved costs and encouraged the parties to resolve the matter themselves. The University was given 28 days from the date of determination to lodge and serve a memorandum on costs if needed, with Dr Connors having 14 days thereafter to reply. The Authority signalled it would apply the usual daily tariff basis if required to determine costs.

The claim was dismissed in full; Dr Connors' employment relationship problem was found to be frivolous under clause 12A of Schedule 2 of the Employment Relations Act 2000.

None ordered. The claim was dismissed. Costs are reserved, with the parties encouraged to resolve the matter between themselves; if not resolved, the University may file a costs memorandum within 28 days of the determination.

Lautusi Isaako, a dismissed employee, had previously obtained an ERA determination against his employer ABS Builders Limited for unjustified dismissal, but ABS paid nothing and subsequently went into liquidation. Mr Isaako applied for compliance orders and sought to hold ABS's associated individuals — Liudmila Blinder (listed director) and Andrey Blinder (de facto manager) — personally liable under s 142W and s 142Y of the Employment Relations Act 2000. The Authority found Andrey Blinder personally liable for $2,959.80 in unpaid holiday entitlements and issued a compliance order against him, but dismissed the claim against Liudmila Blinder and stayed all proceedings against ABS due to its liquidation.

Applicant: Lautusi Isaako (employee)
Respondent: ABS Builders Limited (in liquidation) (First Respondent, employer); Liudmila Blinder (Second Respondent); Andrey Blinder (Third Respondent)

Applicant: Emma Brankin, advocate
Respondent: No appearance

Mr Isaako was employed by ABS Builders Limited and was unjustifiably dismissed. In a prior determination dated 24 October 2025 ([2025] NZERA 678), the Authority ordered ABS to pay Mr Isaako a total of $35,491.35, comprising lost wages, compensation, holiday pay, costs, and filing fee reimbursement, within 28 days. ABS made no payment whatsoever and did not respond to demands. ABS was subsequently placed into liquidation on 13 March 2026, with the Official Assignee appointed as liquidator, and the liquidator did not consent to continuing proceedings against ABS. Mr Isaako then applied for compliance orders against ABS and sought joinder of Liudmila Blinder (listed director and Mr Blinder's wife) and Andrey Blinder (described as general manager and de facto owner), arguing they were persons involved in ABS's breaches and should be jointly and severally liable. None of the respondents appeared or filed any evidence or submissions.

1. Whether proceedings against ABS (in liquidation) could continue, including compliance orders, penalties, and liability findings against ABS — Status: Not reached (paras [5]-[7]).

Section 248(1)(c) of the Companies Act 1993 provides that once a company is in liquidation, no person may commence or continue legal proceedings against it unless the liquidator consents or the High Court grants leave. The liquidator did not consent, so all aspects of the application directed at ABS — including compliance orders, penalties, and liability findings — were stayed. No further orders were made against ABS, and Mr Isaako's recovery from ABS becomes a matter for the liquidation process.

2. Whether ABS had complied with the prior ERA determination ([2025] NZERA 678) — Status: Established (paras [11]-[12]).

Mr Isaako's unchallenged evidence was that ABS had made no payment of any part of the $35,491.35 ordered, had not responded to the payment demand, and had taken no part in these proceedings. The Authority found ABS to be in continuing breach, but noted no liability attaches to this finding against ABS itself (due to the liquidation stay); the finding was made solely to ground the inquiry into the second and third respondents' personal liability.

3. Whether Andrey Blinder was a "person involved" in ABS's breaches within the meaning of s 142W of the Employment Relations Act 2000 — Status: Established (paras [13]-[20]).

Section 142W(1) defines involvement to include aiding, abetting, counselling, procuring, inducing, being knowingly concerned in, or conspiring to effect a breach. Where the primary breach is by an entity, the person must also be an "officer" (s 142W(2)) — a director, someone in a comparable position, or someone able to exercise significant influence over the entity's management. The Court of Appeal in Labour Inspector v Southern Taxis Ltd [2021] NZCA 705 confirmed that knowledge of the primary facts, not legal characterisation, is what matters. The Authority found Mr Blinder recruited Mr Isaako personally, presented himself as owner, gave day-to-day instructions, made hiring and firing decisions, conducted all dismissal correspondence (signing as "general manager"), and continued to operate a similar business. This made him, at minimum, a person able to exercise significant influence over ABS's management, thus an officer; and his continued control and absence of any payment or explanation established knowing involvement in the non-compliance.

4. Whether Liudmila Blinder was a "person involved" in ABS's breaches within the meaning of s 142W — Status: Dismissed (paras [21]-[23]).

While Ms Blinder's status as ABS's listed director made her eligible to be treated as an officer under s 142W, the section additionally requires proof that she aided, abetted, induced, or was knowingly concerned in the breach. Mr Isaako's evidence about Ms Blinder was entirely inferential, based on her marital relationship with Andrey Blinder and her directorship, rather than any direct dealings or knowledge of the primary facts. The Authority was not satisfied she was a person involved in ABS's breaches and dismissed the claim against her.

5. Whether Andrey Blinder was personally liable for unpaid holiday entitlements under s 142Y of the Act — Status: Established (paras [15]-[16], [24]).

Section 142Y makes a person involved in a breach personally liable for defaults in payment of wages or other money due to an employee, but only where the default arises from a breach of "employment standards" as defined in s 5 of the Act. The Holidays Act 2003 components — annual holiday pay ($1,684.80) and public holiday pay ($1,275) — fall within this definition and attract personal liability. The lost wages reimbursement (s 123(1)(b)), compensation (s 123(1)(c)(i)), costs, and filing fee are personal grievance remedies, not employment standards breaches, and so are excluded from s 142Y liability. Personal liability was therefore established for $2,959.80.

6. Whether a compliance order should be made against Andrey Blinder under ss 137 and 138 of the Act — Status: Established (paras [17], [25]-[26]).

Compliance orders under ss 137 and 138 are not confined to employment standards and can be made against a person other than the employer, including a director or officer found to be involved in non-compliance, as confirmed in George Allen Chambers et ors v Pelabon [2019] NZEmpC 45. Given the total absence of payment and the real risk of ongoing non-compliance, the Authority made a compliance order requiring Mr Blinder to take all reasonable and proper steps within his power to ensure the $2,959.80 is paid in full and on time, within 28 days.

7. Whether compliance orders should be made against ABS or Liudmila Blinder — Status: Dismissed (para [26]).

No compliance orders were made against ABS (stayed by liquidation) or Liudmila Blinder (not found to be a person involved in the breaches).

8. Whether a penalty should be imposed on ABS — Status: Not reached (para [7]).

This issue was expressly identified but not determined because ABS's liquidation prevented any further proceedings against it, including penalty orders.

9. Whether Andrey Blinder should be liable for the Authority filing fee — Status: Established (para [29]-[30]).

The filing fee of $71.55 was separately treated, with the Authority finding Mr Isaako was entitled to reimbursement of the fee as evidence confirmed it was paid. The order for reimbursement was made against Andrey Blinder.

10. Whether costs of representation should be awarded to Mr Isaako against the respondents — Status: Dismissed (paras [27]-[29]).

The Authority's discretionary costs power is found in clause 15 of Schedule 2 of the Act, with reference to the notional daily tariff as a guide (Fagotti v Acme & Co Ltd [2015] ERNZ 919). Mr Isaako sought $750 in costs but provided no evidence of actual costs incurred. The Authority declined to award representation costs, noting costs are discretionary not automatic, that awarding an amount without evidence of actual expenditure could overcompensate, and that while Mr Isaako was the successful party, the context (compliance proceedings necessarily arising from ABS's default rather than an originally contested issue) meant costs should lie where they fall — except for the filing fee.

The claim was partially upheld: Andrey Blinder was found personally liable for $2,959.80 in unpaid holiday entitlements and a compliance order was issued against him; the claim against Liudmila Blinder was dismissed; proceedings against ABS were stayed due to liquidation; and costs of representation were not awarded.

- Personal liability (Andrey Blinder): $2,959.80 (unpaid annual holiday pay $1,684.80 and public holiday pay $1,275) under s 142Y of the Act, payable within 28 days.
- Compliance order (Andrey Blinder): Order requiring him to take all reasonable and proper steps to ensure the $2,959.80 is paid in full and on time, within 28 days.
- Filing fee reimbursement (Andrey Blinder): $71.55, within 28 days.
- Costs of representation: None ordered (costs to lie where they fall).
- Proceedings against ABS: Stayed (liquidation); Mr Isaako's claims against ABS to be pursued through the liquidation process.
- Compliance order against Liudmila Blinder: None ordered.