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[COSTS ONLY]

This is a costs determination arising from an earlier substantive decision ([2026] NZERA 389) in which Jinghui (Jeffery) Peng's employment-related claims against Portland Horticulture (2021) Limited and Kar Yan Eng were wholly unsuccessful. The key question is what costs, if any, Mr Peng should pay to the respondents, including whether an uplift is warranted for rejection of a Calderbank settlement offer. The Authority ordered Mr Peng to pay Portland $6,017.50, comprising the base daily tariff plus a $1,000 uplift and $517.50 in disbursements.

Applicant: Jinghui (Jeffery) Peng (employee/claimant)
Respondent: Portland Horticulture (2021) Limited (first respondent/employer) and Kar Yan Eng (second respondent)

Applicant: Self-represented (Jinghui Peng as the Applicant)
Respondent: Raymond Wheeler for the Respondents

In the substantive determination dated 18 June 2026 ([2026] NZERA 389), Mr Peng's claims against both Portland Horticulture (2021) Limited and Kar Yan Eng were dismissed in their entirety. Costs were reserved in that determination to allow the parties to settle the issue between themselves, but they were unable to do so. On 10 July 2025 — well before the investigation meeting held on 28 April 2026 — Portland made a Calderbank offer to settle all matters for $4,500 without admission of liability, which Mr Peng (then represented) declined. Portland sought $4,500 based on the notional daily tariff, plus a significant uplift for rejection of the Calderbank offer, and $517.50 in translation disbursements. Mr Peng opposed the uplift, arguing he had acted in good faith, the application was not frivolous, rejection of a Calderbank offer does not automatically attract an uplift, and his financial circumstances were limited.

1. Whether costs should be awarded against Mr Peng following his wholly unsuccessful claims — Status: Established (paras [1], [6]-[8]).

The Authority's discretion to award costs is governed by s 15 of Schedule 2 of the Employment Relations Act 2000, guided by the Authority's Practice Direction and the principle established in PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC). Key principles are that costs follow the event, awards are modest, and costs are not punitive. The base daily tariff of $4,500 for a one-day investigation meeting was applied as the starting point. The Authority found no reason to decrease the daily tariff, noting both parties were aware of potential costs before the meeting.

2. Whether an uplift to the daily tariff was warranted due to Mr Peng's rejection of a reasonable Calderbank offer — Status: Established (paras [9]-[16]).

An effective Calderbank offer is one that would have provided the receiving party with a better outcome than that ultimately achieved at hearing; if unreasonably rejected, it can justify an uplift in costs, as affirmed in Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385 and the Authority's Practice Direction. The Authority found the 10 July 2025 offer was a valid and early Calderbank offer made substantially before the investigation meeting, that Mr Peng would have been financially better off accepting it, and that he was represented at the time and thus aware of the consequences of non-acceptance. Citing YFX v Chief of the New Zealand Defence Force [2024] NZERA 383 and Smith v Vet Centre Marlborough Ltd [2020] NZERA 82, the Authority awarded a moderate uplift of $1,000, bringing the costs contribution to $5,500 total.

3. Whether Mr Peng's financial circumstances justified a reduction in costs — Status: Dismissed (para [17]).

Mr Peng submitted evidence of limited financial circumstances, though without supporting documentation. The Authority acknowledged and accepted his submissions on financial circumstances but did not apply any reduction to the costs award, implicitly finding that the circumstances did not override the standard costs principles.

4. Whether the respondents' disbursements (translation costs) should be reimbursed — Status: Established (para [18]).

Portland claimed $517.50 in translation disbursements, supported by invoices. The Authority reviewed the disbursements as claimed and found reimbursement appropriate, ordering the full $517.50 to be paid.

The costs application was upheld: Mr Peng is ordered to pay Portland Horticulture (2021) Limited $6,017.50 within 28 days.

Costs contribution: $5,500 (base tariff of $4,500 plus $1,000 uplift for rejection of Calderbank offer).
Disbursements: $517.50 (translation costs).
Total: $6,017.50 payable to Portland Horticulture (2021) Limited within 28 days of the date of the determination.
No remedy was ordered in favour of Mr Peng.
Note: The costs order is made against the applicant (not the respondent). No order was made in respect of Kar Yan Eng (second respondent).

Michael Ritchie, a former employee of Adero Pty Ltd trading as Adero Law (an Australian law firm), applied to the New Zealand Employment Relations Authority for leave to serve his personal grievance and related claims on Adero and an intended second respondent, Hayden Stephens, both based in Australia. The key legal question was whether the Authority had jurisdiction over claims arising entirely from employment performed in Australia under Australian law. The Authority declined jurisdiction and refused leave to serve overseas, closing all related matters.

Applicant: Michael John Ritchie (former employee)
Respondent: Adero Pty Limited trading as Adero Law (employer, Australian company)

Applicant: Self-represented
Respondent: Nicholas Driver, advocate for the First Respondent; Hayden Stephens (Intended Second Respondent) in person

Michael Ritchie was employed by Adero Pty Ltd, an Australian law firm based in Canberra with offices throughout Australia, from 18 November 2018 until approximately 2 February 2020 (the date of his final pay). He worked as an "Origination Officer" assisting with employment class action and litigation matters for Australian clients, performing all his work in Australia (mainly Sydney), being paid in Australian dollars into an Australian bank account, with superannuation contributions under the Fair Work Act 2009 and the Legal Services Award 2010. On 26 November 2025, Ritchie lodged a statement of problem with the Authority claiming unjustified disadvantage, unjustified dismissal, breach of good faith, breach of his employment agreement, wage arrears, and fiduciary/tortious conduct, alleging a verbal employment agreement entitling him to commission. He also applied to join Hayden Stephens as a controlling third party to his personal grievance claims and applied to remove his substantive claims to the Employment Court. Neither Adero nor Stephens had been served, and both disputed the Authority's jurisdiction, asserting the claims had no connection to New Zealand. On 7 August 2026, Ritchie applied for leave to serve his applications on the overseas parties.

1. Whether the Authority should grant leave to serve Ritchie's applications on Adero and Hayden Stephens as overseas parties — Status: Dismissed (paras [19]-[57]).

The Act (Schedule 2, clause 4A) and Employment Relations Authority Regulations 2000 (clause 19A) permit overseas service only with the Authority's leave. The Authority applied the criteria from clause 31A(4) and (5) of the Employment Court Regulations 2000 (ECR), as endorsed in Radford v Chief of New Zealand Defence Force [2021] NZEmpC 35 and applied in NZ Airline Pilots Association v Virgin Australia (NZ) Employment and Crewing Ltd [2019] NZERA 100. The Authority found that none of the ECR factors supported granting leave: the employment agreement was made in Australia, all work was performed in Australia, Australian law governed the employment, and the alleged breaches occurred in Australia; neither Adero nor Stephens had submitted to the Authority's jurisdiction; and Stephens was not found to be a necessary or proper party. Ritchie's personal health difficulties in travelling to Australia did not confer jurisdiction. Accordingly, leave was declined.

2. Whether the Authority should decline jurisdiction under clause 19B of the Employment Relations Authority Regulations 2000 — Status: Established (paras [48]-[58]).

Clause 19B empowers the Authority to decline to hear and determine proceedings involving an overseas party where it is more appropriate for the matter to be resolved outside New Zealand, the applicant will have a fair opportunity elsewhere, the applicant will receive proper justice elsewhere, and the respondent would suffer unfair disadvantage if required to litigate in New Zealand. The Authority was satisfied on all four criteria: the claims had no connection to New Zealand; both Adero and Stephens were entirely Australian-connected; Ritchie had access to fair justice through NSW and/or ACT Australian jurisdictions in which Adero itself practises employment law; and requiring Adero and Stephens to participate in New Zealand proceedings would cause unfair disadvantage. The Authority accordingly declined jurisdiction over the substantive claims and closed matters 3350700 and 3407745.

3. Whether Ritchie's personal grievance claims were lodged within the three-year time limit under s 114(6) of the Employment Relations Act 2000 — Status: Not reached (paras [43]-[45]).

Section 114(6) of the Act precludes a personal grievance claim from being commenced in the Authority more than three years after the date on which it was raised with the employer. The Authority noted that because Ritchie's employment ended no later than 2 February 2020, and he did not lodge his statement of problem until 26 November 2025 (over five years later), he would likely face "serious jurisdictional hurdles" regarding timing. However, the Authority did not resolve this issue definitively, as it had already declined jurisdiction on other grounds, making the timing question moot.

4. Whether Hayden Stephens should be joined as a controlling third party to Ritchie's personal grievance claims — Status: Dismissed (paras [55], [59]).

Under the applicable framework, the Authority must be satisfied that a proposed second respondent is a necessary or proper party. The Authority was not satisfied that Stephens met this threshold: he had a limited engagement with Adero (employed June–October 2019), had no proprietary or managerial role, and his last interaction with Ritchie was approximately seven years before the determination. Stephens also had no connection to New Zealand. The application to join him was accordingly declined.

5. Whether Ritchie's application to remove his substantive claims to the Employment Court under s 178(1) of the Act should be granted — Status: Dismissed (para [59]).

Because the Authority declined jurisdiction over the substantive claims and refused leave for overseas service, the application for removal to the Employment Court under s 178(1) of the Act became moot and was also declined.

6. Whether costs should be awarded — Status: Dismissed (para [61]).

The Authority exercised its discretion and determined that costs should lie where they fall, with no costs awarded to any party in relation to the overseas service application.

The application for leave to serve overseas parties was dismissed in full; the Authority declined jurisdiction over all substantive claims and related applications, and closed both matters.

None ordered. The Authority declined jurisdiction over all claims and closed matters 3350700 and 3407745. No costs were awarded; costs lie where they fall.

[COSTS ONLY]

This is a costs determination following an earlier substantive decision ([2026] NZERA 436) in which Filisi Beswick succeeded against her employer, Friendly Loans Limited (FLL), on claims for unlawful deduction, compensation under s123(1)(c)(i) of the Employment Relations Act 2000, and lost remuneration arising from dismissal. The sole question here is the quantum of costs to be awarded to Ms Beswick. The Authority awarded costs of $4,500 (the standard daily tariff) plus the filing fee of $71.55.

Applicant: Filisi Beswick (employee)
Respondent: Friendly Loans Limited (employer)

Applicant: Joseph Slade, advocate
Respondent: John Pritchard

The substantive determination was issued on 2 July 2026, in which FLL was ordered to pay Ms Beswick a reimbursement of an unlawful deduction ($2,439.09), compensation of $12,000 under s123(1)(c)(i) of the Employment Relations Act 2000, and lost remuneration resulting from dismissal. Costs were reserved at that stage and the parties were encouraged to resolve costs between themselves. The parties attempted to do so but were unable to agree. Ms Beswick then brought a costs application before the Authority. The investigation meeting in the substantive matter was one day in length. No submissions were received from FLL in the costs application.

1. Whether costs should be awarded to Ms Beswick, and if so at what quantum — Status: Established (paras [4]-[8]).

The Authority's power to award costs is set out in clause 15 of Schedule 2 of the Employment Relations Act 2000. The applicable principles, drawn from the Authority's Practice Direction and the cases of Fagotti v Acme & Co Ltd [2015] NZEmpC 135 and JCE v The Chief Executive of the Department of Corrections [2018] NZERA 175, confirm that costs are discretionary, generally follow the event, and are assessed using the notional daily tariff as the starting point, with adjustments possible for factors such as unnecessary or unreasonable conduct, complexity, or other relevant circumstances. The investigation meeting was one day, setting the starting point at $4,500. The Authority accepted Ms Beswick incurred legal costs but found no basis to adjust the daily tariff up or down, noting that the Authority's costs regime is deliberately modest and focused on access to justice, consistent with Key Industries v Perrin [2023] NZERA 172. Costs were awarded at the standard daily tariff of $4,500.

2. Whether the filing fee should be reimbursed — Status: Established (para [10]).

The Authority ordered FLL to reimburse Ms Beswick's filing fee of $71.55, in addition to the costs award. No separate analysis was required; this followed from the overall costs order in favour of the successful applicant.

The costs application was upheld; FLL is ordered to pay Ms Beswick $4,500 in costs plus the filing fee of $71.55.

Costs: $4,500 (standard daily tariff, based on a one-day investigation meeting), payable within 28 days.
Filing fee reimbursement: $71.55, payable within 28 days.
Note: This is a costs-only determination; all substantive remedies (unlawful deduction reimbursement of $2,439.09, compensation of $12,000 under s123(1)(c)(i), and lost remuneration) were ordered in the earlier determination [2026] NZERA 436.

Emily Barr, a part-time travel consultant employed by Brooker Travel Limited from November 2023 until her resignation in April 2025, claimed she was unjustifiably disadvantaged and constructively dismissed after her employer failed to adequately address her complaints of ongoing bullying by her manager. The key legal questions were whether Brooker breached its duty of trust and confidence, whether those breaches foreseeably led to Ms Barr's resignation, and whether the dismissal was justified. The Authority found in Ms Barr's favour on all claims and awarded $20,000 compensation plus approximately $17,800 in lost wages, holiday pay, and associated entitlements.

Applicant: Emily Barr (employee — part-time travel consultant)
Respondent: Brooker Travel Limited (employer)

Applicant: Self-represented (formerly represented by an employment advocate, unnamed in the determination, who withdrew prior to the investigation meeting)
Respondent: James Cowan, counsel for the Respondent

Emily Barr commenced part-time employment as a travel consultant with Brooker Travel Limited on 10 November 2023, working 26 hours per week at $26.44 per hour in a small Canterbury branch. From the outset, Ms Barr experienced what she described as daily dismissive, belittling, and contemptuous behaviour from her manager, which she formally complained about to co-director Anthony Carmody by letter dated 26 February 2025. Brooker engaged an independent employment law specialist to investigate the complaints in March 2025, but Mr Carmody did not separate Ms Barr from the manager during the investigation, failed to provide the final investigation report to Ms Barr, and communicated a summary that Ms Barr considered minimised the findings. Ms Barr's advocate raised a personal grievance by letter dated 14 April 2025, requesting a return-to-work plan, back pay, and various undertakings, but Mr Carmody rejected most remedies, declined mediation, and provided no constructive reintegration pathway. Ms Barr resigned on 30 April 2025, and filed an application with the Authority on 13 May 2025; mediation on 21 August 2025 was unsuccessful. Brooker's position was that its investigation process was thorough, that Ms Barr's advocate impeded resolution, and that no serious breach of duty occurred.

1. Whether Brooker breached its implied duty of trust and confidence owed to Ms Barr — Status: Established (paras [10]-[11], [101]-[108]).

The Authority applied the well-established implied contractual duty not to, without proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence, affirmed in Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 2 NZLR 415 (CA) and Rodkiss v Carter Holt Harvey Limited [2015] NZEmpC 34. The Authority found multiple cumulative breaches: Mr Carmody's failure to meet Ms Barr early to understand her distress; failure to consult her on investigation terms of reference; failure to disclose the final investigation report; failure to separate the parties during the investigation; rejection of all alternative arrangements including paid leave; minimisation of the investigation findings; failure to devise any return-to-work plan; and undue influence from the manager going unchallenged. The Authority found these cumulatively constituted a breach of duty and were not the actions of a fair and reasonable employer.

2. Whether Ms Barr was constructively dismissed and, if so, whether the dismissal was justified — Status: Established (unjustified dismissal) (paras [8]-[9], [109]-[111]).

The Authority applied the three-limb constructive dismissal test from Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA): (a) whether there were breaches of duty; (b) whether any breach was sufficiently serious that resignation was reasonably foreseeable; and (c) whether Ms Barr resigned in response. The Authority found all three limbs satisfied: breaches of duty were established (issue 1 above); resignation was reasonably foreseeable given the cumulative conduct and the advocate's express notice to Mr Carmody; and Ms Barr resigned in direct response to those circumstances. On justification under s 103A of the Employment Relations Act 2000, Brooker failed to demonstrate its actions were justified, and the dismissal was found to be both procedurally and substantively unjustified.

3. Whether Brooker unjustifiably disadvantaged Ms Barr — Status: Established (paras [109], [118]-[119]).

The Authority found the same breaches of duty that constituted the constructive dismissal also unjustifiably disadvantaged Ms Barr, including in the period between 10 March 2025 and 30 April 2025 when she was on unpaid leave during the investigation. Lost wages for the pre-resignation unjustified disadvantage period were subsumed into a global award alongside the dismissal remedy.

4. Whether Brooker breached good faith obligations under s 4 of the Employment Relations Act 2000 — Status: Established (paras [111]).

The Authority found Mr Carmody breached good faith obligations under s 4(1A)(b) and (c)(i) and (ii) of the Act by: withholding the final investigation report and other key information from Ms Barr; not allowing Ms Barr to comment on his conclusions before acting on the investigation report; and failing to take active steps to maintain the working relationship.

5. Whether Ms Barr's contributory conduct should reduce any remedy under s 124 of the Act — Status: Dismissed (paras [120]-[121]).

The Authority was required by s 124 of the Act to assess whether Ms Barr's own actions contributed to the circumstances giving rise to the personal grievances, applying the factors summarised in Maddigan v Director General of Conservation [2019] NZEmpC 190 at [71]–[76]. The Authority found no contribution by Ms Barr; the causative factors lay entirely with Brooker's actions and omissions. No reduction was applied.

6. What remedies should be awarded — compensation under s 123(1)(c)(i) of the Act — Status: Established (paras [112]-[117]).

The Authority considered evidence of Ms Barr's humiliation, loss of dignity, anxiety, physical symptoms (severe eczema, poor sleep), loss of confidence, alienation, and financial strain, along with comparable Authority and Court awards. The Authority awarded $20,000 compensation for hurt, humiliation, and injury to feelings.

7. What remedies should be awarded — lost wages under s 123(1)(b) and s 128(3) of the Act — Status: Established (paras [118]-[119]).

The Authority exercised its discretion under s 128(3) and awarded a global six-month (24-week) lost wages award at $687.44 gross per week, together with holiday pay, employer KiwiSaver contributions, and interest under Schedule 2 of the Interest on Money Claims Act 2016. The award covered both the unjustified dismissal and unjustified disadvantage findings.

8. How costs should be dealt with — Status: Reserved (paras [123]-[126]).

The Authority reserved costs and encouraged the parties to resolve the issue themselves. If unresolved, Ms Barr may file a memorandum on costs within 28 days; Brooker then has 14 days to reply. Costs will be determined on the Authority's standard daily tariff basis unless circumstances warrant adjustment.

The claims were upheld in full: Ms Barr established both unjustified disadvantage and unjustified constructive dismissal, with no reduction for contributory conduct, and remedies were awarded accordingly.

- Compensation (hurt/humiliation/injury to feelings): $20,000 (gross, no deductions) under s 123(1)(c)(i)
- Lost wages: $16,498.56 gross (24 weeks at $687.44/week) under s 123(1)(b) — global award covering both unjustified dismissal and unjustified disadvantage
- Holiday pay: $1,319.56 on the lost wages amount
- Interest: Payable on unpaid wages and holiday pay in accordance with Schedule 2 of the Interest on Money Claims Act 2016
- Employer KiwiSaver contributions: Payable on the lost wages and holiday pay amounts in (b) and (c)
- Reinstatement: Not ordered (not sought)
- Costs: Reserved; parties encouraged to agree; if not resolved, memorandum process applies
- All payments due within 28 days of the determination

Vanessa Bodis, a former store manager at Muse Boutique Limited, was summarily dismissed on 10 December 2021. She lodged a statement of problem with the Employment Relations Authority on 9 March 2025, some three years and three months after her dismissal. The central legal questions were whether she had commenced her action within the 3-year statutory limitation period for personal grievances and whether additional grievances raised in a replacement statement of problem filed in August 2025 were within the 90-day statutory timeframe. The Authority found that Ms Bodis had in fact raised her personal grievances during November and December 2021 (not in March 2022 as she contended), meaning her action was commenced beyond the 3-year limit, and a new protected disclosure grievance raised in August 2025 was also out of time without exceptional circumstances to excuse the delay.

Applicant: Vanessa Bodis (employee/former store manager)
Respondent: Muse Boutique Limited (employer, first respondent); Olivia Healy (owner, second respondent)

Applicant: Michael Currie, representative for the Applicant
Respondent: Alastair Espie, counsel for the Respondent

Ms Bodis was employed by Muse Boutique Limited as an in-store stylist and then store manager from August 2018. On 19 November 2021 Muse commenced a disciplinary investigation into Ms Bodis' conduct. Through her representative Mr Currie, Ms Bodis sent extensive written communications to Muse on 30 November and 5 December 2021 raising detailed concerns about the disciplinary process, bullying, health and safety issues, and seeking resolution; Ms Bodis herself wrote to Muse on 11 December 2021 following her summary dismissal on 10 December 2021. A lawyer wrote formally on Ms Bodis' behalf on 10 March 2022 raising personal grievances, and Ms Bodis lodged a statement of problem in the Authority on 9 March 2025 (replaced by a new statement on 22 August 2025). Ms Bodis argued her personal grievances were not raised until 10 March 2022, placing her statement of problem within the 3-year limit, and that her November–December 2021 communications were merely responses to disciplinary allegations and attempts to engage dispute resolution, not formal grievances. Muse contended the personal grievances had been raised in November/December 2021, placing the action outside the 3-year limit, and that any new grievances in the August 2025 statement were also out of time.

1. Whether Ms Bodis raised personal grievances (unjustified disadvantage and unjustified dismissal) in her November/December 2021 communications, such that her action was commenced beyond the 3-year statutory limitation period — Status: Established (paras [27]-[36], [41]).

The 3-year limitation period under s 114(6) of the Employment Relations Act 2000 (ERA) admits no power of extension. The Authority applied the principles from Creedy v Commissioner of Police and Chief Executive of Manukau Institute of Technology v Zivaljevic that a personal grievance is raised when the employer is given sufficient information to understand and address the substance of the complaint, without requiring any particular formula or perfection of claim. Reading the November and December 2021 communications in totality, the Authority found that Ms Bodis (through Mr Currie and in her own letter of 11 December) had narrated detailed concerns about the disciplinary process, bullying, health and safety, and her dismissal with sufficient specificity to amount to raising personal grievances. The Authority rejected Ms Bodis' argument that the grievances were not "perfected" or that her lack of access to payroll records or employment documents prevented their raising, concluding the personal grievances for unjustified disadvantage (disciplinary process, bullying, misconduct allegations, health and safety) and unjustified dismissal were raised in November/December 2021, making the action commenced in March 2025 beyond the 3-year limit and outside the Authority's jurisdiction.

2. Whether the employment agreement's dispute resolution clause (clause 34) was compliant with s 65(2)(a)(vi) of the ERA and whether it caused confusion about raising personal grievances — Status: Dismissed (paras [13]-[15], [35]).

Section 65(2)(a)(vi) requires every individual employment agreement to contain a plain language explanation of services available for the resolution of employment relationship problems, including reference to the 90-day period. The Authority examined clause 34 and found no ambiguity between the terms "dispute" and "personal grievance" either in isolation or in the context of the agreement as a whole, finding the clause compliant. Ms Bodis' argument that this clause created confusion was rejected; the contemporaneous record showed she was well able to articulate her concerns and engage in the process throughout November and December 2021.

3. Whether a new personal grievance for protected disclosure retaliation raised in the 22 August 2025 statement of problem was within the 90-day statutory limit under s 114 of the ERA — Status: Dismissed (paras [37]-[39], [42]).

Section 114 of the ERA requires a personal grievance to be raised with the employer within 90 days of the act or its coming to the employee's notice. The Authority found this grievance was first raised in the August 2025 statement of problem, approximately three and a half years after dismissal, and was not identified in the 10 March 2022 letter despite a careful review of that 49-page document. The grievance was therefore raised well outside the 90-day limit.

4. Whether exceptional circumstances under s 114(4) and s 115 of the ERA occasioned the delay in raising the protected disclosure grievance out of time — Status: Dismissed (paras [38]-[39]).

The Authority may grant leave to raise a grievance out of time if exceptional circumstances occasioned the delay and it is just to do so (s 114(4)), with examples including being so affected or traumatised as to be unable to act, agent failure, or non-compliant employment agreement. While Ms Bodis had faced personal challenges between her dismissal and filing, the Authority found these did not meet the statutory threshold because she had been able to raise multiple personal grievances contemporaneously with events, engaged counsel through March–April 2022, and there was no evidence she had instructed a representative to raise a protected disclosure grievance within the 90-day period or that any agent had unreasonably failed to do so. The employment agreement contained a compliant dispute resolution explanation. Leave was refused.

5. What matters remain before the Authority for investigation and determination — Status: Established (para [40]).

Having found the personal grievances and the protected disclosure grievance to be outside jurisdiction, the Authority identified three categories of matters that remain live and within jurisdiction: (i) alleged breach of the statutory duty of good faith; (ii) alleged breaches of specified clauses of the employment agreement (clauses 20, 23, 27, 14.3, 19.2, and 36); and (iii) alleged breaches of record-keeping duties and wage arrears. A case management conference is to be convened to progress these matters.

6. Costs — Status: Reserved (para [44]).

The Authority reserved costs without making any award at this stage.

The claim was partially dismissed on jurisdictional grounds: the Authority has no jurisdiction to investigate the personal grievances (unjustified disadvantage and unjustified dismissal raised November/December 2021) as the action was commenced beyond the 3-year limit, and the protected disclosure personal grievance raised in August 2025 was out of time with no exceptional circumstances established; the remaining claims (good faith, employment agreement breaches, record-keeping, and wage arrears) are to proceed to a case management conference.

None ordered at this stage. The personal grievance claims were dismissed for lack of jurisdiction. The remaining matters (alleged breach of good faith, employment agreement breaches, record-keeping duties, and wage arrears) are to be progressed by case management conference. Costs reserved.

[COSTS ONLY]

This is a costs determination following a substantive Employment Relations Authority decision in which Indo Kiwi Horticulture Limited was found liable for wage arrears, holiday pay, unlawful premium payments, and penalties, with Boota Singh Dhillon found personally involved in those breaches. The Labour Inspector, as the successful party in the substantive matter, sought costs and disbursements. The Authority awarded $6,250.00 in costs and $1,209.44 in disbursements, with both respondents jointly and severally liable.

Applicant: A Labour Inspector (enforcement authority)
Respondent: Indo Kiwi Horticulture Limited (First Respondent, employer) and Boota Singh Dhillon (Second Respondent, director/person involved)

Applicant: John Hilario, counsel for the Applicant
Respondent: Boota Singh Dhillon in person and for the First Respondent

In the substantive determination issued on 14 August 2026 ([2026] NZERA 557), the Authority found Indo Kiwi Horticulture Limited liable for arrears of wages, holiday pay (with interest), and unlawful premium payments, and ordered penalties against both Indo Kiwi and Boota Singh Dhillon personally. Mr Dhillon was found to be a "person involved" in breaches of employment standards, and leave was granted for the Labour Inspector to recover from him personally under s 142Y of the Employment Relations Act 2000 if Indo Kiwi could not meet its obligations. Following the substantive determination, the Labour Inspector filed costs submissions. Mr Dhillon responded, claiming he had no money to meet the remedies awarded, citing financial commitments to his children and elderly parents in India, but provided no financial information or income details. The parties could not resolve costs between themselves, and the Labour Inspector sought an award of costs and disbursements.

1. Whether the Labour Inspector, as the successful party, is entitled to a costs award — Status: Established (paras [14]-[16]).

The Authority's power to award costs derives from clause 15 of Schedule 2 to the Employment Relations Act 2000 and is discretionary, exercised consistently with the Authority's equity and good conscience jurisdiction. Guided by the principles in PBO Limited (formerly Rush Security Limited) v Da Cruz [2005] 1 ERNZ 808 and Faggotti v Acme & Co Limited [2015] NZEmpC 135, including that costs generally follow the event, the Authority found the Labour Inspector was entitled to a costs consideration as the successful party. The starting point was set at $8,000.00, representing two full days at the notional daily tariff.

2. Whether the daily tariff starting point should be adjusted upward or downward — Status: Partially established (paras [17]-[22]).

The Authority considered whether the parties' conduct or attempts to resolve the matter warranted adjustment but found no evidence of either. However, the Authority noted that the investigation was completed in less than the scheduled two days (the second day finishing before lunchtime), justifying a downward adjustment. Applying the principle that costs awards will generally be modest, the Authority reduced the award to one full day plus a half day at the tariff rate, arriving at $6,250.00.

3. Whether disbursements for travel and accommodation of counsel should be awarded — Status: Established (paras [23]-[25], [27]).

Although the Authority does not typically award travel costs, it exercised its discretion to do so here because the Labour Inspectorate has no in-house counsel in Tauranga, requiring Auckland-based counsel to travel. The claim was described as modest and reasonable, and was allowed as it avoided the greater cost of instructing external counsel. Witness expenses for four summonsed witnesses, certified translation costs, and the lodgement fee were also allowed.

4. Whether reimbursement of the hearing fee ($153.33) should be awarded — Status: Dismissed (para [26]).

The Authority found no evidence that the Labour Inspector had been invoiced for or had paid any hearing fee in respect of the matter. After the Authority sought further information, the Labour Inspector withdrew this component of the disbursement claim, and it was not allowed.

5. Whether costs and disbursements orders should be made jointly and severally against both respondents — Status: Established (paras [28]-[29]).

Following A Labour Inspector v Indian Cuisine NZ Ltd (In Liq) [2021] NZERA 72, the Authority ordered both Indo Kiwi Horticulture Limited and Boota Singh Dhillon to be jointly and severally liable for the full costs and disbursements orders, leaving apportionment between themselves as a matter for the respondents.

The Labour Inspector's costs application was partially upheld: costs were awarded at a reduced amount reflecting that the hearing concluded in less than the allocated time, with disbursements (minus the withdrawn hearing fee) also awarded.

Costs contribution: $6,250.00
Disbursements (travel, accommodation, witness expenses, translation): $1,137.89
Lodgement fee: $71.55
Total ordered: $7,459.44
Both respondents are jointly and severally liable.
Payment due within 28 days of the date of this determination.

Rakesh Patel, a business analyst employed by Manukau Institute of Technology and Unitec (MIT-Unitec) for nearly 21 years, was summarily dismissed on 11 June 2026 for serious misconduct related to alleged false and misleading representations about a data systems project. Mr Patel applied for interim reinstatement under s 127 of the Employment Relations Act 2000, which MIT-Unitec opposed on the grounds that his dismissal was lawful, reinstatement was neither reasonable nor practicable, and trust and confidence had been irreparably damaged. The Authority granted interim reinstatement on conditions, finding Mr Patel established an arguable case for unjustified dismissal, an arguable case for permanent reinstatement, and that the balance of convenience and overall justice favoured reinstatement.

Applicant: Rakesh Patel (employee — business analyst)
Respondent: Manukau Institute of Technology and Unitec (employer)

Applicant: Tim Cleary, counsel
Respondent: Sherridan Cook and Michelle McLean, counsel

Mr Patel was employed continuously by MIT-Unitec (formerly Unitec) as a business analyst from 15 August 2005, accumulating nearly 21 years of service with no prior disciplinary history. From 1 January 2026, his reporting line changed to Christine Park (General Manager Academic Services). The disciplinary process arose from representations Mr Patel made to Ms Park and an Executive Director in early 2026 about the Tertiary Education Commission's Data Systems Refresh (DSR) project, which MIT-Unitec alleged were false and misleading — specifically, that he incorrectly described the project as incomplete when it had been signed off in 2025. Following a formal disciplinary process (including a meeting on 20 April 2026, a preliminary decision on 25 May, and Mr Patel's 18-page response on 29 May), Ms Park upheld two allegations of serious misconduct and dismissed Mr Patel summarily on 11 June 2026. Mr Patel denies the allegations and asserts the DSR project was genuinely incomplete; he also alleges Ms Park holds a personal animus against him, which she denies. The parties attended mediation as directed by the Authority before the investigation meeting.

1. Whether Mr Patel has an arguable case for unjustified dismissal — Status: Established (paras [9]-[27]).

The applicable threshold is whether the claim is not frivolous or vexatious, requiring some serious or arguable (but not necessarily certain) prospects of success, per Western Bay of Plenty District Council v McInnes [2016] NZEmpC 36. The Authority applied s 103A of the Act (fair and reasonable employer standard) and identified seven grounds supporting arguability: absence of a preliminary investigation before formal disciplinary action; procedural irregularities including the role of senior managers, transcript defects, and whether Ms Park was an appropriate investigator; whether the evidence sufficiently established the intention and dishonesty ascribed to Mr Patel; whether IT managers' definitions of DSR project scope were the only reasonable interpretation; the existence of evidence (including a 7 January 2026 email) supporting Mr Patel's view that the DSR project was incomplete; whether MIT-Unitec fairly considered a finding of mistake rather than misconduct; and whether the novelty of reporting requirements was fairly weighed. The Authority concluded Mr Patel met the low threshold.

2. Whether Mr Patel has an arguable case for permanent reinstatement — Status: Established (paras [28]-[33]).

Under s 125(2) of the Act, reinstatement is the primary remedy where it is practicable and reasonable, and it is insufficient to show mere resistance or strained circumstances to defeat it (Angus v Ports of Auckland [2011] NZEmpC 122; Air New Zealand Limited v Hudson). MIT-Unitec argued that the new s 123C of the Act (in force from 21 February 2026, introduced by the Employment Relations Amendment Act 2026) bars reinstatement where an employee's blameworthy conduct contributed to the personal grievance. The Authority held that assessing blameworthy contribution requires a full factual inquiry not available at the interim stage, so the statutory bar could not be applied now. On the practicability of reinstatement, the Authority accepted Mr Patel's skills, experience, and close identification with his role, and found that MIT-Unitec's considerable resources could likely be deployed to manage any operational risks, including by utilising a senior manager apparently willing to support Mr Patel.

3. Whether the balance of convenience favours granting interim reinstatement — Status: Established (para [34]-[37]).

The balance of convenience requires assessing the detriment each party would suffer if reinstatement is granted or refused, including whether damages could adequately compensate any harm. The Authority found this consideration weighed finely in Mr Patel's favour: the harm to him of remaining out of a role he had held for nearly 21 years was potentially significant (financial, reputational, emotional), and MIT-Unitec's operational risks could likely be managed through appropriate measures including a supportive senior manager. The Authority was not persuaded that MIT-Unitec's trust and confidence concerns were incapable of interim management.

4. Whether the overall justice of the case supports granting interim reinstatement — Status: Established (paras [38]-[41]).

The overall justice assessment (described as a check on the earlier analyses, per NZ Tax Refunds Limited v Brooks Homes Limited [2013] NZCA 90) weighed the legal framework, the parties' obligations under the Act to build productive employment relationships, and the public interest in open communication at a significant public institution. The Authority found that the overall justice supported upholding the employment framework and the parties' obligations, favouring the grant of interim reinstatement.

5. Costs — Status: Not reached (para [43]).

Costs were expressly reserved and will be determined at a later stage.

The application for interim reinstatement was upheld in full; Mr Patel is to be reinstated to the payroll immediately and the parties are to resume mediation to agree the terms of reinstatement.

Interim reinstatement: Granted — Mr Patel is reinstated to the payroll with immediate effect.
Conditions: The parties are to resume mediation forthwith to reach agreement on how Mr Patel can be reinstated to his position or one no less advantageous to that held at dismissal. If agreement cannot be reached by 25 September 2026, further directions may be sought from the Authority.
This is an interim/conditional remedy pending the substantive determination.
Costs: Reserved.

[CONSENT]

Karen van Gemerden (employee) and AGE Limited (employer) were parties to cross-claims arising from their employment relationship. During an in-person investigation meeting on 11 September 2026, the parties reached a full and final settlement of all claims, known and unknown, and jointly requested the Authority issue a consent determination recording their agreed terms. The Authority granted this request, making the settlement terms binding orders, and issued a non-publication order to preserve the confidentiality of those terms.

Applicant (primary): Karen van Gemerden (employee)
Respondent (primary): AGE Limited (employer)
Note: AGE Limited also filed cross-claims as applicant against Karen van Gemerden as respondent; both sets of claims are resolved by this consent determination.

Applicant: Kenton Starr, counsel for the Applicant (Karen van Gemerden appeared in person as well)
Respondent: Harry Rillstone, counsel for the Respondent

Karen van Gemerden and AGE Limited were parties to an employment relationship that gave rise to mutual claims, filed in cross-proceedings before the Authority. The nature of the specific underlying claims is not detailed in this determination. An in-person investigation meeting was held in Auckland on 11 September 2026. During that meeting, the parties informed the Authority they had settled all issues arising from their employment relationship — present, past, and future, known and unknown — on agreed terms recorded in a signed Record of Settlement dated 11 September 2026. Both parties requested the Authority issue a consent determination to make the settlement terms binding and enforceable as orders of the Authority.

1. Whether the Authority should issue a consent determination recording the parties' agreed terms of settlement — Status: Established (paras [2]-[5]).

The parties jointly requested a consent determination pursuant to the Employment Relations Act 2000. The Authority was satisfied that the parties had reached a full and final settlement of all claims, known and unknown, arising from their employment relationship. The agreed terms recorded in the signed Record of Settlement were converted into orders of the Authority, rendering them final, binding, and enforceable, with no further challenge permitted.

2. Whether a non-publication order should be made over the terms of the Settlement — Status: Established (paras [7]-[8]).

The Authority considered an application for non-publication of the settlement terms pursuant to clause 10 of Schedule 2 of the Employment Relations Act 2000. The parties had agreed the terms were to remain confidential to themselves and their professional advisers. The Authority was satisfied there was no countervailing public interest requiring publication, and accordingly made a non-publication order subject to the condition that it does not apply to employment institutions.

The claim was resolved by consent determination: all employment relationship claims between the parties were settled in full and final terms, with the settlement made binding as orders of the Authority and a non-publication order issued over the settlement terms.

The specific terms of the settlement are confidential and subject to a non-publication order; accordingly, no remedy amounts or conditions are disclosed in this determination. The settlement is described as final, binding, and enforceable as orders of the Authority.

The New Zealand Public Service Association Te Pukenga Here Tikanga Mahi Incorporated (PSA) applied for urgent referral to facilitation under s 50B of the Employment Relations Act 2000 in respect of its collective bargaining with Nurse Maude Association, a registered charity providing community nursing and care services. The dispute centres on whether the statutory grounds for facilitation are made out following over a year of unsuccessful bargaining. The Authority found the ground of unduly protracted bargaining under s 50C(1)(b) established and ordered the parties to engage in facilitation.

Applicant: New Zealand Public Service Association Te Pukenga Here Tikanga Mahi Incorporated (union)
Respondent: Nurse Maude Association (employer)

Applicant: Caroline Mayston, counsel
Respondent: Megan Evans and Ruvin Pattiaratchi, counsel

Nurse Maude Association is a registered charity providing district and specialist nursing and community care services, employing approximately 247 PSA members covered by a (now expired) Collective Agreement for Community Support Workers. The PSA initiated bargaining for a new Collective Agreement on 10 September 2025; the existing agreement expired on 31 October 2025. Despite four days of in-person bargaining, mediated bargaining on 3 July 2026, and regular communications over more than a year, the parties failed to agree on either a bargaining process agreement or a replacement Collective Agreement. PSA members took strike action on 31 July 2026, 10 August 2026, and 7 September 2026, with further strike action scheduled for 14 September 2026. Nurse Maude did not oppose the application for facilitation but disputed that any undue protraction was attributable to its own conduct, asserting it had met with the PSA throughout and made genuine offers to settle.

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

The Authority applied the test from McCain Foods (NZ) Limited v Service & Food Workers Union Nga Ringa Tota Inc [2009] EMC WC5/09, which held that "undue" protraction occurs where strongly held positions have precluded settlement. The Authority also adopted the interpretive approach from Service & Food Workers Union Nga Ringa Tota Inc v Sanford Limited [2012] NZEmpC 168, which directs that the facilitation sections should be read as part of a scheme encouraging timely collective bargaining settlement, and the Authority should not be astute to find reasons to refuse a reference where a common-sense assessment indicates its desirability. On the undisputed facts — over a year of bargaining, four days of in-person negotiations, mediated bargaining, no agreed BPA, and no concluded agreement — the Authority was satisfied bargaining had been unduly protracted and extensive efforts including mediation had failed to resolve the impasse.

2. Whether the ground under s 50C(1)(d) of the Act is made out — that a proposed strike or strikes would be likely to substantially affect the public interest — Status: Not reached (para [22]).

Having found the s 50C(1)(b) ground made out, the Authority was only required to be satisfied of one ground and therefore did not need to consider the s 50C(1)(d) ground. No finding was made on whether the strike action (including strikes already taken and scheduled action) would substantially affect the public interest.

3. Whether costs should be awarded — Status: Dismissed (para [24]).

The Authority noted, by reference to the Employment Relations Authority Practice Direction (February 2024, page 5 at [6]), that the parties should bear their own costs. No costs order was made.

The application for referral to facilitation was upheld. The Authority found the s 50C(1)(b) ground established and ordered the parties to engage in urgent facilitation.

Facilitation ordered: The Authority ordered the parties to engage in facilitation to assist them towards settlement of a new Collective Agreement. A case management conference is to be convened as soon as possible to arrange urgent facilitation, to be conducted by a different Authority Member. No monetary remedy ordered. Costs: Each party to bear their own costs.

[COSTS ONLY]

This is a costs determination following a successful unjustifiable dismissal claim by Natalie Butler-Smith against her former employers, David and Dale Cavey trading as DG and DV Cavey Partnership. The key legal question was the appropriate quantum of costs to award, including whether an uplift above the standard daily tariff was warranted given the respondents' lack of engagement throughout proceedings. The Authority awarded costs at the standard half-day tariff rate with no uplift, plus the filing fee.

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

Applicant: William Lynch, advocate
Respondent: No appearance

The Authority issued a substantive determination on 26 May 2026 upholding Ms Butler-Smith's claim of unjustifiable dismissal against the Cavey Partnership. The parties were unable to resolve costs between themselves following that determination. Ms Butler-Smith lodged costs submissions; the respondents provided no submissions in reply. The investigation meeting had lasted half a day and was conducted by AVL; the respondents failed to attend that meeting, did not lodge a Statement in Reply, did not attend the Case Management Conference, and did not engage at any stage of proceedings. Ms Butler-Smith's advocate submitted that $2,500 plus the filing fee was fair and reasonable given the time engaged and the respondents' lack of engagement. The respondents had been expressly advised in the Authority's Notice of Investigation Meeting and in the substantive determination that costs could be awarded against them.

1. Whether Ms Butler-Smith is entitled to a costs award as the successful party at the standard daily tariff rate — Status: Established (paras [7]-[11], [15]).

The Authority applies a daily tariff as the starting point for costs: $4,500 for the first day of hearing and $3,500 for subsequent days, with a half-day attracting $2,250. The power to award costs derives from s 15 of Schedule 2 of the Employment Relations Act 2000. Applying the principles in PBO Limited (formerly Rush Security Limited) v Da Cruz [2005] 1 ERNZ 808, as confirmed in Fagotti v Acme and Co Limited [2015] NZEmpC 135, costs are to be modest and represent a reasonable contribution to costs actually and reasonably incurred, not a punishment. The Authority found Ms Butler-Smith was entitled to $2,250 as the successful party, representing the half-day tariff.

2. Whether an uplift on the standard tariff was warranted due to the respondents' lack of engagement — Status: Dismissed (paras [12]-[14]).

Ms Butler-Smith sought an uplift of $225 above the half-day tariff, arguing that the respondents' complete non-engagement increased time and cost. The Authority accepted that the respondents had indeed failed to engage at every stage — no Statement in Reply, no attendance at the Case Management Conference or Investigation Meeting, and no costs submissions. However, the Authority held that this lack of engagement did not necessarily increase the overall time and cost actually expended by Ms Butler-Smith, and therefore an uplift was not justified. Costs cannot be used as a punishment for the unsuccessful party's conduct.

3. Whether the filing fee should be recoverable in addition to the tariff-based costs — Status: Established (paras [6], [16]).

The Authority accepted without detailed analysis that the filing fee of $71.55 was recoverable in addition to the tariff-based costs award, consistent with the applicant's submission and the Authority's general practice.

The costs claim was partially upheld: the standard half-day tariff of $2,250 plus the filing fee of $71.55 was awarded, but the requested uplift was declined.

Costs: $2,250.00 (half-day tariff rate) plus Authority filing fee of $71.55, to be paid by David and Dale Cavey t/a DG and DV Cavey Partnership jointly and severally to Natalie Butler-Smith within 28 days of the date of the determination.

[CONSENT]

Bleitian Tian (applicant/employee) brought employment-related claims against Better Carpeting Limited (first respondent/employer) and Chengming Zhang (second respondent). The parties reached an agreed settlement in principle during the investigation meeting, which was then recorded in a signed settlement agreement. The Authority made the settlement terms orders of the Authority by consent, with no costs issues between the parties.

Applicant: Bleitian Tian (employee)
Respondent: Better Carpeting Limited (first respondent/employer) and Chengming Zhang (second respondent)

Applicant: May Moncur, advocate
Respondent: Lina Li, representative

Bleitian Tian brought employment-related claims against Better Carpeting Limited and Chengming Zhang before the Employment Relations Authority. An investigation meeting commenced on 9 September 2026 and was scheduled to continue through to 10 September 2026. No formal evidence was heard before the parties agreed in principle to resolve the matter. The meeting was adjourned on 9 September 2026 to allow the parties to record their agreement. The parties subsequently signed a settlement agreement and jointly requested that its terms become orders of the Authority. The parties also requested confidentiality over the terms of the settlement, so the signed agreement was not attached to the determination.

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

The parties jointly requested that their signed settlement agreement be incorporated as orders of the Authority. The Authority accepted this request and declared the terms of the settlement full, final, and binding in respect of all employment-related matters between the parties, with those terms now constituting orders of the Authority. No contested legal tests were required given the consensual nature of the resolution.

2. Whether confidentiality should apply to the terms of the settlement — Status: Established (para [4]).

Both parties requested confidentiality over the settlement terms. The Authority granted this request; the signed settlement agreement was not attached to the determination but is to be held separately by the Authority.

3. Whether there were any costs issues between the parties — Status: Dismissed (para [5]).

Having made the consent orders, the Authority recorded that the matter was deemed withdrawn with no issues as to costs between the parties, so no costs orders were made or required.

The claims were resolved by consent; the settlement agreement was made orders of the Authority, the matter was deemed withdrawn, and no costs were awarded to either party.

All remedies are contained within the confidential settlement agreement, the terms of which are not disclosed in the determination. No costs were ordered. The matter is fully resolved and deemed withdrawn.

IT Live (Auckland) Limited (ITLA) brought claims against its former Operations Manager, Malcolm Bramley, and a third party (Elite Business Systems LP) alleging post-employment breaches including breach of good faith, confidentiality, non-solicitation obligations, and failure to return a company mobile phone. Two preliminary issues were determined on the papers: whether a prior mediated settlement barred ITLA's claims, and whether an obligation to return the mobile handset existed. The Authority found ITLA's claims were not settled by the earlier agreement and ordered Mr Bramley to return the mobile phone within two working days.

Applicant: IT Live (Auckland) Limited (employer)
Respondent: Malcolm Bramley (First Respondent, former employee); Elite Business Systems LP (Second Respondent)

Applicant: Michael Witt and Tony Sung, counsel for the Applicant
First Respondent: Paul McBride, counsel for the First Respondent
Second Respondent: Russell Drake, advocate for the Second Respondent

Malcolm Bramley was employed by ITLA as Operations Manager from 7 September 2015 until his redundancy on 10 March 2025. In February 2025, ITLA commenced a restructure consultation, which Mr Bramley challenged as predetermined. Following his redundancy, Mr Bramley lodged a statement of problem seeking return and control of his mobile phone number, and on 8 July 2025 the parties attended mediation, signing agreed terms of settlement that included a "full and final settlement" clause covering all matters arising out of or relating to the employment and termination. Mr Bramley withdrew his ERA proceedings following settlement. On 18 November 2025, ITLA lodged its own statement of problem alleging post-employment breaches by Mr Bramley (including breach of confidentiality, non-solicitation, and failure to return the company mobile handset) and claiming Elite Business Systems LP had incited or aided those breaches. The parties agreed to have two preliminary issues determined on the papers: whether the settlement barred ITLA's claims, and whether there was an obligation for Mr Bramley to return the mobile handset.

1. Whether all claims in ITLA's statement of problem have been settled pursuant to an agreement made under s 149 of the Employment Relations Act 2000 — Status: Dismissed (i.

e., the settlement bar argument was dismissed) (paras [14]-[21]).
The Authority applied objective contractual interpretation principles, focusing on what the agreed terms of settlement would convey to a reasonable person in the parties' position (Vulcan Steel Ltd v Manufacturing & Construction Workers Union [2022] NZEmpC 78). It also applied the principle that a "full and final" clause should be read subject to the particular claim and the limited purpose of the compromise, and that courts are slow to infer surrender of rights of which a party was unaware (Rickards v Ruapehu District Council [2003]; Maharaj v Wesley Wellington Mission Incorporated [2016] NZEmpC 129). The Authority found the settlement's background referred only to Mr Bramley's personal grievance, contained no reference to post-employment obligations or their alleged breach, and that ITLA was unaware of the alleged breaches at the time of settlement on 8 July 2025. The Authority rejected Mr Bramley's reliance on FMV v TZB [2021] NZSC 102, holding that "matter" in that case concerned the Authority's jurisdiction, not contractual obligations between parties. Accordingly, ITLA's claims were not barred by the settlement.

2. Whether there is an express or implied term requiring Mr Bramley to return the mobile phone handset to ITLA — Status: Established (paras [22]-[29]).

The Authority examined clause 16.1 of the individual employment agreement, which provided that a mobile phone could be supplied to the employee for the performance of duties, with costs met by the employer. The Authority was satisfied the handset was ITLA's property, that the agreed terms of settlement did not address or settle the return of the handset, and that upon termination of employment clause 16.1 imported an obligation on Mr Bramley to return the handset. Finding that ITLA had sought return and Mr Bramley had failed to comply, the Authority exercised its discretion under s 137(2) of the Act to order compliance and prevent further non-observance.

3. Whether Elite Business Systems LP incited, instigated, aided, and/or abetted Mr Bramley's alleged breaches — Status: Not reached (paras [10], [31]).

This issue was not determined at the preliminary stage. It, along with the substantive claims regarding post-employment obligations, will be investigated at the investigation meeting scheduled for October 2026.

4. Whether Mr Bramley breached post-employment obligations (duty of good faith, fidelity, confidentiality, non-solicitation) — Status: Not reached (paras [9], [31]).

These substantive claims were reserved for the full investigation meeting in October 2026 and were not addressed in this preliminary determination.

5. Costs — Status: Reserved (para [33]).

The Authority reserved the question of costs without making any order at this stage.

The claim that ITLA's statement of problem was barred by the prior settlement was dismissed; the obligation to return the mobile phone handset was established and an order made accordingly; the substantive claims will proceed to a full investigation meeting.

Return of property: Mr Bramley ordered to return the company mobile phone handset to ITLA within 2 working days of the date of this determination (10 September 2026), pursuant to s 137(2) of the Employment Relations Act 2000.
Monetary compensation: None ordered at this stage.
Reinstatement: Not applicable.
Costs: Reserved.
Note: This is a preliminary determination only; all substantive claims (post-employment obligation breaches and claims against Elite Business Systems LP) are to be investigated at a full investigation meeting in October 2026.

This determination concerns an urgent application by two related companies (MGD and ARL, collectively the applicants) against a former senior employee (SRE) and three associated respondents (TDG, WFS, and NPD) alleging breaches of post-employment confidentiality, return-of-property, and non-solicitation obligations in SRE's individual employment agreement. The key legal questions were whether there was an arguable case for the alleged breaches, where the balance of convenience lay, and what preliminary orders should be made. The Authority declined the urgent compliance order but issued a witness summons requiring SRE to produce his devices and email accounts for forensic examination, while adjourning the summons for the other respondents pending the outcome of that examination.

Applicant: MDG (first applicant, employer company) and ARL (second applicant, employer company)
Respondent: SRE (first respondent, former employee); TDG (second respondent, competitor company); WFS (third respondent, director of TDG and NPD); NPD (fourth respondent, competing company)

Applicant: Anne Wilson, counsel for the Applicants
Respondent: Aishleen Sluiters and Zachary Pentecost, counsel for the Respondents

SRE worked for the applicants and related entities for over 17 years, most recently as New Zealand Business Training Manager from 1 April 2024 until his employment ended on 1 July 2026, following his resignation on 1 May 2026. Upon leaving, SRE joined TDG — a competitor company incorporated in April 2026 — becoming a director and shareholder. WFS, a former General Manager of MGD who had left in March 2024, was a director of both TDG and NPD (a separate competing business). The applicants alleged SRE had downloaded large volumes of confidential documents before his departure, copied them to USB sticks, emailed MGD documents to his personal Gmail account, and solicited MGD's clients in breach of a six-month post-employment non-solicitation clause; they further alleged WFS aided and abetted those breaches by sending a TDG training flyer to MGD's clients. SRE admitted retaining a USB stick with some MGD materials (characterised as inadvertent) and acknowledged downloading files and forwarding documents to his personal email, but denied any improper purpose and denied soliciting clients. The respondents opposed the urgent orders sought, arguing there was no factual basis for the claims and that forensic examination of their devices would be disproportionately intrusive.

1. Whether an interim non-publication order should be made covering the parties' names, identifying information, and medical information — Status: Partially established (paras [1]-[7]).

The Authority had already issued an interim non-publication order on 17 August 2026 covering confidential and commercially sensitive information. SRE applied on 10 September 2026 for a broader order covering the parties' names, identifying information, and medical information. The Authority extended the existing order on a narrower basis than sought — covering only medical information in SRE's third affidavit and parties' names — with a condition that the order did not apply to employment institutions. It declined to extend the order to all identifying information, noting that relevant parts of the determination had been redacted instead, and expressly stated this interim order did not necessarily become final.

2. Whether the applicants had a legitimate proprietary interest capable of protection by post-employment restraints — Status: Established (paras [131]-[133]).

The Authority applied the established principle that a former employer must show a legitimate proprietary interest to support enforcement of a restraint (Gallagher Group Ltd v Walley [1999] 1 ERNZ 490). It found the applicants had an arguable legitimate proprietary interest in protecting client and supplier relationships for a limited post-employment period and in preventing misuse of confidential information and intellectual property.

3. Whether the post-employment restraints in SRE's IEA (clauses 5.6, 7.6, and 7.10) were arguably reasonable and enforceable — Status: Established (paras [126]-[134]).

Restraint of trade provisions are prima facie unenforceable unless reasonably necessary to protect a legitimate proprietary interest (Gallagher; Transpacific Industries Group (NZ) Ltd v Harris [2013] NZEmpC 97). The Authority found the six-month non-solicitation restraint was arguably reasonable given SRE's seniority and length of service, and the indefinite confidentiality restriction was arguably reasonable given the nature of his role and the type of information involved. The provisions were therefore arguably enforceable.

4. Whether SRE arguably breached clause 7.6 (return of property) of his IEA — Status: Established (para [135]).

Clause 7.6 required return of all employer property on or before the final day of employment. SRE admitted retaining a USB stick containing the applicants' information after his employment ended. The Authority held this clearly and arguably constituted a breach of clause 7.6.

5. Whether SRE arguably breached clause 5.6 (confidentiality) of his IEA — Status: Established (paras [136]-[142]).

The Authority applied the three-category framework from Faccenda Chicken Ltd v Fowler [1985] 1 All ER 724 (adopted in New Zealand) and the Employment Court's holding in Transpacific Industries (NZ) Ltd v Harris. The evidence showed SRE had downloaded 274 documents, copied 109 files to USB, and sent 13 emails with MGD documents to his personal Gmail account. The Authority found the information arguably included trade secrets, client records, pricing information, and commercial agreements — all within the scope of clause 5.6 — and that SRE's conduct raised serious concern including double-deletion of emails, withdrawal of email access consent, and failure to voluntarily return materials.

6. Whether SRE arguably breached clause 7.10 (non-solicitation) of his IEA — Status: Established (paras [143]-[144]).

Clause 7.10 imposed a six-month post-employment restraint on soliciting MGD's clients, suppliers, or customers. Based on MGD's evidence regarding SRE's farewell communications to clients with new contact details, the TDG training flyer directed to MGD clients listing SRE as the contact, and subsequent client cancellations, the Authority found it was arguable SRE had breached this clause.

7. Whether there was an arguable case that TDG, WFS, and NPD aided and abetted SRE's breaches — Status: Established (para [145]).

Applying the low arguable case threshold, the Authority found WFS's actions in sending the TDG course flyer to MGD clients — while a director of both TDG and NPD — met the standard for an arguable case of aiding and abetting SRE's non-solicitation breach.

8. Whether SRE's claim that the non-solicitation clause was unreasonable due to the applicants' monopoly position should be accepted — Status: Dismissed (paras [126]-[134]).

SRE contended the six-month restraint was excessive given the applicants' dominant market position. The Authority did not accept this argument, finding the restraint was arguably reasonable having regard to SRE's seniority, length of service, and the nature of the information he held.

9. Whether SRE's claim that the non-solicitation clause applied only to ARL's clients (not MGD's) should be accepted — Status: Dismissed (para [118], and implicitly throughout).

SRE argued that as ARL was his employer, the IEA's restraint only covered ARL's clients. The Authority did not accept this as a basis to exclude the claims, finding the arguable case threshold was met in relation to MGD's clients, consistent with the applicants' claim of joint employment and MGD's operational role.

10. Where does the balance of convenience lie pending resolution of substantive claims — Status: Established in favour of issuing a witness summons for SRE (paras [147]-[169]).

The Authority weighed the risk of irreparable harm to the applicants (loss of confidential information, competitive disadvantage, inability to assess dissemination) against the inconvenience to respondents of forensic device examination. It found the potential inconvenience to respondents could be better managed than that to the applicants, particularly through a staged approach starting with SRE's devices only before considering other respondents. The applicants provided an undertaking as to damages. The balance of convenience favoured summonsing SRE's devices for forensic examination.

11. Whether damages would be an adequate remedy if interim relief were refused — Status: Partially established (para [166]).

The Authority briefly noted that damages may not be an adequate remedy if confidential information and intellectual property were not secured and returned, supporting the need for interim relief beyond a damages award.

12. Where does the overall justice of the case lie — Status: In favour of issuing witness summons to SRE only (paras [170]-[182]).

The Authority balanced the rights, obligations, and potential harm to all parties and relevant third parties. It concluded that SRE's IEA obligations and undertaking to comply were insufficient to protect the applicants' legitimate interests pending substantive resolution. It found the Authority had power under ss 160 and 162 of the Employment Relations Act 2000, and Schedule 2 clause 5, to issue witness summonses and engage forensic experts (relying on Johnstone v Kinetic Employment Ltd [2019] NZERA 218 and [2019] NZEmpC 91). Overall justice favoured issuing the witness summons to SRE.

13. Whether an urgent compliance order should be made — Status: Dismissed (at this stage) (paras [183]-[185]).

The applicants sought an urgent compliance order requiring SRE to return all property and comply with clause 5.6. The Authority declined at this stage: the USB stick was already subject to a return process underway, SRE had undertaken to comply with post-employment obligations, and it was premature to issue further orders while allegations remained untested. The Authority indicated it would reconsider after the forensic examination.

14. Whether a witness summons should be issued to SRE requiring him to produce his devices, email accounts, and passwords for forensic examination — Status: Established (paras [187], [189]-[190]).

The Authority exercised its powers under s 160, s 162, and Schedule 2 of the Employment Relations Act 2000, and consistent with Johnstone v Kinetic Employment Ltd, to issue a witness summons to SRE requiring him to attend with his devices, storage media, email accounts, and passwords. The applicants were ordered to engage and initially fund a forensic computer expert to assist the review, with search terms to be agreed with the parties to limit examination to relevant information and protect privileged/personal material.

15. Whether a witness summons should be issued to WFS and the other respondents requiring production of their devices — Status: Adjourned sine die (para [188]).

The Authority adjourned this application pending the outcome of SRE's forensic examination, adopting the staged approach proposed by the applicants: if SRE's examination revealed no transfer of MGD's information to the other respondents, further summonses may be unnecessary.

16. Whether SRE's claim that his downloading and forwarding of documents was usual business practice authorised by the applicants should be accepted — Status: Dismissed (paras [69]-[97]).

SRE claimed downloading to USB and forwarding to personal email were normal, authorised practices. The Authority found this was contradicted by affidavit evidence from three MGD employees and a detailed analysis of SRE's email history, which showed a significant increase in such activity from February 2026 onwards — inconsistent with a pattern of ordinary work conduct.

17. Costs — Status: Adjourned sine die (para [191]).

The Authority adjourned the costs decision without further order.

The claim was partially upheld at this preliminary stage: the urgent compliance order application was dismissed, but the witness summons application in respect of SRE's devices and email accounts was granted, the summons for the other respondents was adjourned pending the outcome of that examination, and costs were reserved.

- Urgent compliance order: Not granted at this stage.
- Witness summons to SRE: Issued, requiring SRE to attend with his computer systems, data storage devices, laptops, USB sticks, external hard drives, and all passwords/logins necessary for the Authority (with forensic expert assistance) to access and review his devices and personal Gmail account.
- Forensic examination: The applicants are ordered to engage and initially fund an independent forensic computer expert. Search terms to be set by the Authority in consultation with the parties to protect privileged and personal information.
- Witness summons for WFS and other respondents (TDG, NPD): Adjourned sine die, to be reviewed after SRE's summons is responded to.
- Urgent case management conference: Ordered to be scheduled.
- Non-publication order: Extended on an interim basis (until further order) to cover SRE's medical information and the parties' names, subject to conditions. Not extended to all identifying information.
- Costs: Reserved (adjourned sine die).
- All remedies and orders are interim/preliminary in nature; substantive claims remain to be determined.

Nasir Hildiid, a security guard employed by Allied Investments Limited (trading as Allied Security), claimed constructive dismissal and multiple disadvantage grievances arising from alleged misclassification of employment status, holiday pay discrepancies, forced annual leave, shift cancellations, unfair treatment after sick leave, and withholding of final wages. The central legal questions were whether the personal grievances were raised within the 90-day statutory notification period under s 114 of the Employment Relations Act 2000, and whether Allied Security's actions amounted to unjustifiable disadvantage. The Authority found all claims except two (the final wages and 27 March 2025 conversation) were outside the 90-day period and therefore could not be determined, and both in-time disadvantage claims were dismissed on their merits.

Applicant: Nasir Hildiid (employee — security guard)
Respondent: Allied Investments Limited (employer, trading as Allied Security Limited)

Applicant: Self-represented (applicant in person)
Respondent: Eve Martin for the Respondent

Mr Hildiid's employment originated with Recon Security and transferred to Allied Security in September 2021, where he was treated as a casual employee until 13 May 2024 when a permanent full-time collective employment agreement was signed following union involvement. Mr Hildiid raised multiple concerns over time, including misclassification as casual, holiday pay discrepancies, forced annual leave, shift cancellations, unfair treatment after sick leave, and withholding of final wages, culminating in a personal grievance letter sent to Allied Security on 3 June 2025. He resigned on 2 April 2025, stating it was due to disputes relating to annual leave and other grievances, and later amended his statement of problem to include a constructive dismissal claim. Allied Security contended that all grievances except the final wages claim were raised outside the 90-day notification period, that issues had been progressively addressed, and that its direction to take annual leave complied with s 19 of the Holidays Act 2003. The key factual disputes concerned whether Allied Security's responses to Mr Hildiid's concerns were adequate, whether the forced leave was justified, and whether final wages were withheld.

1. Whether the constructive dismissal claim and most disadvantage claims were raised within the 90-day employee notification period under s 114 of the Employment Relations Act 2000 — Status: Dismissed (paras [21]-[61]).

Section 114(1) of the Act requires an employee to raise a personal grievance with the employer within 90 days of the action alleged to amount to a grievance, or when it came to the employee's notice, whichever is later. The Authority reviewed each grievance category in turn and found that the misclassification issue was resolved by May 2024; holiday pay discrepancies were known by August 2024; forced leave was known in January 2025; shift cancellations occurred between March and June 2024; and the sick leave unfair treatment incident occurred in November 2023 — all more than 90 days before the grievance was raised on 3 June 2025. No application for exceptional circumstances was made and Allied Security did not consent to out-of-time claims; accordingly, the constructive dismissal claim and most disadvantage claims could not be determined by the Authority.

2. Whether the legal test for constructive dismissal was satisfied — Status: Not reached (paras [21]-[22], [61]).

The Authority set out the applicable legal tests for constructive dismissal, citing 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 IUOW Inc [1994] 1 ERNZ 168 (CA), requiring either a deliberate course of conduct to coerce resignation or a sufficiently serious breach of duty that foreseeably compelled resignation. Because the constructive dismissal claim was raised outside the 90-day period and no exceptional circumstances application was made, the Authority did not reach the merits of this claim.

3. Whether Mr Hildiid was unjustifiably disadvantaged by the withholding of his final wages — Status: Dismissed (paras [62]-[69], [75]).

The test for unjustifiable disadvantage requires identifying the complained-of action, whether it occurred, whether it caused disadvantage to the employee's employment or conditions, and whether the employer's actions were justifiable (citing Wiles v Vice-Chancellor of the University of Auckland [2024] NZEmpC 123). The Authority found that Allied Security had not withheld wages; the regular wage payment was made on the normal payment cycle and Mr Hildiid himself returned it, creating confusion. Allied Security re-paid the amount once it understood what had occurred. The Authority was satisfied there was no withholding by Allied Security and no unjustifiable disadvantage.

4. Whether Mr Hildiid was unjustifiably disadvantaged by the 27 March 2025 conversation with his manager regarding forced leave — Status: Dismissed (paras [70]-[73], [75]).

The Authority considered whether this conversation, as the alleged catalyst for Mr Hildiid's resignation, was raised in sufficient time and whether it disclosed a disadvantage. Even treating this as raised within time via the 3 June 2025 grievance letter, the Authority found Allied Security had acted in accordance with s 19 of the Holidays Act 2003, which permits employers to require employees to take annual leave after proper notice (not less than 14 days) where agreement cannot be reached. Correct notice had been given, and Mr Hildiid had consistently declined to agree to take leave. In those circumstances, any disadvantage could not be unjustified.

5. Whether Allied Security's direction to take annual leave complied with the Holidays Act 2003 — Status: Established (paras [51]-[53], [71]-[72]).

The Authority found that Allied Security gave written notice to Mr Hildiid on 28 January 2025 under s 19(2) of the Holidays Act 2003 requiring him to take annual leave after agreement could not be reached, and that the notice period of not less than 14 days was complied with. This direction was found to be lawful and reasonable in circumstances where Mr Hildiid had an excessive leave balance and had declined to agree to take leave.

6. Whether the misclassification of employment status as casual rather than permanent constituted an actionable personal grievance — Status: Dismissed (paras [42]-[43], [60]-[61]).

The Authority noted that the misclassification issue was well known to Mr Hildiid and his union by early 2024 and was resolved by the signing of a permanent collective employment agreement on 13 May 2024. The personal grievance was not raised until 3 June 2025, well outside the 90-day period. The claim could not be determined.

7. Whether incorrect holiday pay after reclassification constituted an actionable personal grievance — Status: Dismissed (paras [44]-[50], [58]-[60]).

The dispute about whether annual leave had been paid correctly (including whether s 28 of the Holidays Act 2003 entitled Mr Hildiid to backdated annual leave arrears) was known to Mr Hildiid by August 2024. No grievance was raised about this until 3 June 2025, placing it outside the 90-day period. The Authority noted the matter was also the subject of a separate Labour Inspector investigation.

8. Whether shift cancellations constituted an actionable personal grievance — Status: Dismissed (paras [55]-[56], [60]).

Five shift cancellations between March and June 2024 were raised as grievances. All occurred more than 90 days before the 3 June 2025 grievance letter. The claim was outside the notification period and could not be determined.

9. Whether unfair treatment after sick leave constituted an actionable personal grievance — Status: Dismissed (paras [57], [60]).

The sick leave incident was dated approximately 13 November 2023. The grievance was not raised until 3 June 2025, well outside the 90-day period. The claim could not be determined.

10. Costs — Status: Reserved (paras [76]-[78]).

The Authority reserved costs, encouraging the parties to resolve the issue between themselves. Allied Security may lodge a memorandum on costs within 28 days of the determination, with Mr Hildiid having 14 days to reply. The Authority indicated it would apply the standard daily tariff basis unless circumstances warranted adjustment.

The claim was dismissed in full: all personal grievance claims raised outside the 90-day period could not be determined, and the two in-time disadvantage claims (final wages and 27 March conversation) were dismissed on their merits.

None ordered. Costs are reserved, with a process set out for filing costs memoranda if the parties cannot resolve the issue between themselves.

[COSTS ONLY]

This determination concerns costs following an earlier substantive decision ([2026] NZERA 480) in which Conner Powell succeeded in claims of unjustifiable dismissal and related breaches against OH & N Contracting Limited and its director Bradley Mooney. The key questions were whether costs should be awarded to the successful applicant and in what amount, particularly in light of the respondents' arguments that a pending Employment Court challenge and the applicant's "no win no fee" arrangement with his advocate prevented a costs award. The Authority awarded costs of $2,321.55 to the applicant.

Applicant: Conner Powell (employee)
Respondent: OH & N Contracting Limited (First Respondent, employer) and Bradley Mooney (Second Respondent, director/individual)

Applicant: David Cain, advocate (Sacked Kiwi)
Respondent: Bradley & Chelsie Mooney (self-represented)

In a prior determination dated 20 July 2026 ([2026] NZERA 480), the Authority found that Conner Powell had been unjustifiably dismissed from his employment with OH & N Contracting Limited, and that the employer had also failed to pay final wages, provide a copy of the individual employment agreement, and keep and provide wage and time records. Remedies awarded in that determination included unpaid wages of $2,592 (gross), lost wages of $4,800 (gross), compensation for humiliation of $15,000, and a penalty of $2,000, with Mr Mooney made liable for the unpaid wages if the company did not pay. The parties were encouraged to resolve costs between themselves but could not agree, leading to this costs determination. Mr Powell sought $2,321.55 (half the daily tariff of $2,250 plus a $71.55 filing fee), while the respondents argued they were not liable for costs because the matter was under challenge in the Employment Court and because Mr Powell's "no win no fee" arrangement with Sacked Kiwi meant OH & N Contracting Limited had no contractual obligation to pay Sacked Kiwi directly.

1. Whether costs should be awarded to the successful applicant despite the respondents' pending Employment Court challenge to the substantive determination — Status: Established (paras [12], [16]).

The Authority applied the settled principle that costs follow the event, as set out in PBO v Da Cruz [2005] 1 ERNZ 808 and the Authority's own Practice Note and Practice Direction. The Authority noted that s 180 of the Employment Relations Act 2000 does not prevent the Authority from awarding costs even when the underlying decision is under challenge in the Employment Court. The respondents' assumption that costs could only be finalised at the conclusion of the Employment Court process was found to be incorrect.

2. Whether the applicant's "no win no fee" arrangement with his advocate (Sacked Kiwi) precluded an award of costs against the respondent — Status: Dismissed (paras [13], [15]).

The Authority applied the general principle that an unsuccessful party is ordinarily required to contribute to the costs of the successful party, regardless of the contractual arrangements between the successful party and their representative. The contractual relationship between Mr Powell and Sacked Kiwi was found to be irrelevant to the respondent's liability to contribute to costs. The respondents' argument that costs should come out of the remedies already awarded was rejected.

3. Whether the quantum of costs sought ($2,250 half-day tariff plus $71.55 filing fee) was appropriate — Status: Established (paras [6], [10], [17]).

The Authority applied the tariff-based framework from PBO v Da Cruz and its own Practice Note, with the current tariff set at $4,500 for the first day. The investigation meeting lasted half a day, making $2,250 (half the first-day tariff) the appropriate starting point. No uplift was sought or applied, and the Authority found the amount entirely appropriate in all the circumstances.

The costs claim was upheld in the amount sought, with OH & N Contracting Limited ordered to pay Conner Powell $2,321.55 in costs.

Costs: $2,321.55 (comprising $2,250 half-day tariff contribution plus $71.55 filing fee), payable by OH & N Contracting Limited to Conner Powell within 28 days of the date of this determination. Note: this is a costs-only determination; all substantive remedies were ordered in the prior determination [2026] NZERA 480.

[COSTS ONLY]

This is a costs determination following a substantive employment relations matter in which Philip Powell successfully established unjustified dismissal against OH & N Contracting Limited. The key legal question is whether a Calderbank offer made by Mr Powell justified a 50% uplift on the standard daily tariff costs award. The Authority awarded a modest uplift of $500 over the standard half-day tariff, giving a total costs order of $2,750 plus the filing fee.

Applicant: Philip Powell (employee)
Respondent: OH & N Contracting Limited (employer) and Bradley Mooney (Second Respondent)

Applicant: Dave Cain, advocate
Respondent: No appearance

In the substantive determination issued on 20 June 2026 ([2026] NZERA 481), the Authority found that OH & N Contracting Limited had unjustifiably dismissed Mr Powell and ordered payment of $4,160 in unpaid wages inclusive of holiday pay, $6,400 in lost wages, $15,000 in compensation for humiliation, injury to feelings and loss of dignity, and a penalty of $3,000 ($2,000 payable to Mr Powell). The investigation meeting had been held in Whanganui on 5 May 2026 and lasted half a day, with written submissions exchanged thereafter. On 3 May 2026 (a Sunday), Mr Powell made a Calderbank offer to OH & N, open for acceptance until 15 May 2026; the offer was substantially lower than what the Authority ultimately ordered and was not accepted. The parties could not resolve costs between themselves, and Mr Powell lodged submissions seeking costs; OH & N filed no submissions in reply.

1. Whether Mr Powell, as the successful party, is entitled to a costs award at the standard daily tariff — Status: Established (paras [9]-[14]).

The Authority applies a daily tariff as the starting point for costs: $4,500 for the first hearing day and $3,500 for subsequent days, with a half-day rate of $2,250. The applicable principles from PBO Limited v Da Cruz [2005] 1 ERNZ 808 (confirmed in Fagotti v Acme and Co Limited [2015] NZEmpC 135) require costs to be modest and represent a reasonable contribution to costs actually and reasonably incurred, not a punishment. Because Mr Powell was entirely successful, the Authority confirmed he is entitled to the standard half-day tariff of $2,250 as the starting point.

2. Whether the Calderbank offer justified a 50% uplift in costs — Status: Partially established (paras [13], [15]-[21]).

A Calderbank offer (without prejudice save as to costs) may justify a costs uplift where it was unreasonably refused, assessed by reference to the offer's size, the refusing party's reasonable expectations, and the party's ability to assess the case's merits at the time (Ogilvy & Mather (NZ) Ltd v Darroch [1993] 2 ERNZ 943). The offer was made on Sunday 3 May 2026, only one clear working day before the investigation meeting on 5 May 2026, meaning OH & N was not given a reasonable opportunity to consider it prior to the meeting; accordingly, no uplift was warranted for the meeting itself or preparatory steps. However, after the investigation meeting concluded it was reasonable for OH & N to have accepted the offer, and the time and expense incurred by Mr Powell in the post-meeting phase (written submissions) justified a limited uplift. The Authority declined the 50% uplift sought but awarded an uplift of $500 for the post-meeting phase, bringing the total to $2,750.

3. Whether the filing fee should be recovered — Status: Established (para [22]).

The Authority ordered recovery of the Authority's filing fee of $71.55 in addition to the costs award, consistent with its standard practice.

The costs claim was partially upheld: the standard tariff was confirmed and a partial uplift was granted, but the full 50% uplift sought was declined.

Costs: $2,750 (comprising the $2,250 half-day tariff plus a $500 uplift referable to the post-investigation-meeting phase) plus the filing fee of $71.55, payable by OH & N Contracting Limited to Philip Powell within 28 days of the date of the determination (9 September 2026).

Note: The substantive remedies (unpaid wages of $4,160, lost wages of $6,400, compensation of $15,000, and penalty of $3,000) were ordered in the earlier determination [2026] NZERA 481 and are referenced here for context only.

[COSTS ONLY]

Philip Moller (employee) successfully brought an unjustified dismissal claim against Cardinal Logistics Limited (employer) in a prior determination ([2026] NZERA 318). This follow-on determination resolves three outstanding matters left open from that decision: the costs award (including consideration of a Calderbank offer), the quantum of lost remuneration for 13 weeks, and the quantum of unpaid suspension pay. The Authority awarded costs of $8,500, lost remuneration of $18,510.34, and suspension pay of $1,067.90.

Applicant: Philip Moller (employee)
Respondent: Cardinal Logistics Limited (employer)

Applicant: Lawrence Anderson, advocate
Respondent: Brendon Furness, representing the Respondent

Philip Moller was found to have been unjustifiably dismissed by Cardinal Logistics Limited in a prior Authority determination dated 22 May 2026 ([2026] NZERA 318). In that determination, costs were reserved, and the quantum of lost remuneration (13 weeks) and unpaid suspension pay were devolved to the parties to agree. The parties were unable to reach agreement on any of these outstanding matters. Prior to the investigation meeting, Mr Moller had made a Calderbank offer on 28 January 2026 to settle for $12,000 including costs plus GST, which Cardinal rejected, instead counter-offering $5,000 inclusive, which Mr Moller did not accept. Mr Moller submitted he consistently worked 10 hours per day but no evidence was before the Authority to substantiate overtime beyond contractual hours, so lost wages were calculated on contractual hours (40 hours per week at $32/hour). Cardinal's payslips confirmed 30 hours of unpaid suspension time.

1. Whether costs should be awarded to Mr Moller as the successful party, and at what level — Status: Established (paras [5]-[18]).

The Authority's power to award costs arises under section 15 of Schedule 2 of the Employment Relations Act 2000, and is discretionary, guided by the principles in PBO Limited (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808, including that costs are not punitive and follow the event. The Authority found that costs should follow the event in favour of Mr Moller as the successful party. The Calderbank offer (Calderbank v Calderbank [1976] Fam 93 (CA)) was made well in advance of the investigation meeting and at a lesser amount than ultimately awarded; this warranted an uplift on a base one-day investigation meeting costs figure. No additional uplift for preparation complexity was made as the matter was not complex. The Authority ordered Cardinal to pay $7,500 in costs at this stage (with a further $1,000 for the quantum subdivision — see issue 4 below — bringing total costs to $8,500).

2. Whether Mr Moller's lost remuneration quantum should be calculated on actual hours worked (10 hours/day) or contractual hours (40 hours/week) — Status: Dismissed in part (paras [20]-[22]).

Mr Moller submitted he consistently worked 10 hours per day, 5 days per week, which would exceed his contractual hours. The Authority applied a basic evidentiary standard and found there was no evidence before it to substantiate that Mr Moller worked hours in excess of his contractual hours on a consistent basis, nor was this issue canvassed during the investigation meeting. Lost wages were therefore calculated on contractual hours of 40 hours per week at $32 per hour over 13 weeks, yielding $16,640.

3. Whether Mr Moller was entitled to holiday pay and KiwiSaver contributions on lost remuneration — Status: Established (paras [23]-[24]).

Following the calculation of lost wages, the Authority ordered statutory entitlements to be applied: holiday pay at 8% of lost wages ($1,331.20) and a KiwiSaver employer contribution at 3% of the combined wages and holiday pay ($539.14), consistent with standard statutory obligations under the Holidays Act 2003 and KiwiSaver Act 2006.

4. Whether Mr Moller was entitled to quantum of unpaid wages during suspension — Status: Established (paras [26]-[30]).

The prior determination ([2026] NZERA 318) had ordered Cardinal to pay any monies lost as a result of Mr Moller's suspension, with quantum left for the parties to agree. Based on Mr Moller's payslips, 30 hours were confirmed as unpaid during suspension. The Authority ordered payment of $960.00 (30 hours × $32/hour), plus holiday pay of $76.80 (8%) and KiwiSaver contribution of $31.10 (3% of combined wages and holiday pay).

5. Whether Mr Moller was entitled to a further costs contribution for the quantum subdivision hearing — Status: Established (paras [31]-[32]).

The Authority considered that Mr Moller was entitled to a costs contribution in respect of the subdivision proceedings addressing lost remuneration and suspension pay. An amount of $1,000 was awarded, bringing the total costs award to $8,500 (combined with the $7,500 awarded for the main costs issue).

The determination was upheld in favour of Mr Moller on all outstanding matters: costs, lost remuneration quantum, and suspension pay quantum were all resolved in his favour, with the sole exception that his claim for payment on hours exceeding contractual hours was not supported by evidence.

Costs: $8,500 (comprising $7,500 for the main proceedings, with an uplift reflecting the Calderbank offer, plus $1,000 for the quantum subdivision).
Lost remuneration: $18,510.34 (wages: $16,640.00; holiday pay: $1,331.20; KiwiSaver contribution: $539.14).
Suspension pay: $1,067.90 (wages: $960.00; holiday pay: $76.80; KiwiSaver contribution: $31.10).
All amounts payable within 14 days of the date of this determination (8 September 2026).
Note: MSD payments received by Mr Moller during the post-termination period are a matter for him to resolve directly with MSD and were not deducted by the Authority.

Soungsil (Olivia) Ro, a part-time bus driver employed by Ritchies Transport Holdings Limited, claimed unjustifiable dismissal on grounds of medical incapacity, wage arrears as an alleged full-time employee, unpaid sick leave, and associated remedies including reinstatement. The central legal questions were whether the dismissal was justified, whether Ms Ro had become a full-time employee from May 2022, and whether sick leave was owed for an overseas absence. The Authority dismissed the personal grievance and sick leave claims but awarded limited wage arrears for two fortnights where Ms Ro was paid below her contracted part-time minimum hours.

Applicant: Soungsil (Olivia) Ro (employee/bus driver)
Respondent: Ritchies Transport Holdings Limited (employer)

Applicant: Seungmin Kang, counsel for the Applicant
Respondent: William Henrikson as the Respondent

Ms Ro was employed by Ritchies as a permanent part-time bus driver (minimum 16 hours per week) from 15 March 2021 at the Albany depot. In May 2022, following a complaint about insufficient hours, she was allocated the 8029 daytime urban route from 16 May 2022. She maintains this changed her status to full-time employment (minimum 80 hours per fortnight), a position Ritchies disputes. From late 2023, when Auckland Transport changed route requirements and Ms Ro's duties were adjusted to include night driving and school runs, Ms Ro refused to work those shifts, citing medical and safety concerns, but declined to provide supporting medical information despite multiple requests from Ritchies. Ritchies sent three letters between 1 and 15 September 2025 seeking medical information and inviting Ms Ro to meetings; she declined to attend or provide documentation. Her employment was terminated in writing on 19 September 2025 on grounds of medical incapacity. In oral evidence before the Authority, Ms Ro acknowledged she had no physical impediments to driving and that her concerns were psychological/preference-based. An earlier application for interim reinstatement was declined.

1. Whether Ms Ro was unjustifiably dismissed on grounds of medical incapacity — Status: Dismissed (paras [22]-[67]).

The Authority applied the s 103A justification test and the framework from Lal v The Warehouse Group Ltd [2017] NZEmpC 66, which requires: giving the employee a reasonable opportunity to recover; undertaking a fair and reasonable inquiry into prognosis; engaging appropriately with the employee; and fairly considering the employee's response before terminating. The Authority found that Ritchies had legitimate safety and operational reasons to seek medical information, sent comprehensive correspondence on three occasions, offered meetings, offered to pay for medical assessments, and accommodated Ms Ro's request for written-only communication. Ms Ro unreasonably refused to provide any medical information or meaningfully engage, and it transpired she had no physical limitations. The Authority concluded Ritchies acted as a fair and reasonable employer and the dismissal was justified; the claim was dismissed.

2. Whether Ms Ro had a contributory role reducing any remedies under s 124 of the Act — Status: Not reached (para [9](b)).

As the unjustifiable dismissal claim was dismissed and no remedies were awarded under that claim, the question of reduction for blameworthy conduct under s 124 did not arise and was not determined.

3. Whether Ms Ro was a full-time employee from 16 May 2022, and whether wage arrears and statutory entitlements were owed for that period — Status: Dismissed (paras [24]-[35]).

The Authority examined the employment agreement (which defined full-time employment as a minimum of 80 hours per fortnight) and Ms Ro's payslips for the full period. The payslip data showed Ms Ro averaged 69.44 hours per fortnight following 16 May 2022, reaching 80 hours or more in only 9 of 24 fortnights, and never exceeded 71 hours on average in any sustained period. The Authority found there was no agreement — written or oral — changing Ms Ro's status to full-time, and that offering the 8029 route was a practical solution to her part-time hours complaint, not a permanent contractual guarantee of full-time status. The claim for wage arrears and holiday pay as a full-time employee was declined.

4. Whether Ms Ro was owed limited wage arrears for two fortnights where she worked below her contracted part-time minimum hours — Status: Established (paras [36]-[37]).

As a part-time employee, Ms Ro was entitled to a minimum of 16 hours per week under her employment agreement. Payslip review identified two fortnights (commencing 25 March 2024 and 26 August 2024) where she was paid below that contracted minimum. The Authority found Ms Ro was entitled to be paid for 12 hours at her relevant ordinary hourly rate (seven hours for the first fortnight and five hours for the second), plus holiday pay and less applicable deductions.

5. Whether Ms Ro was entitled to sick leave for her overseas absence from 28 October 2023 to approximately 11 February 2024 — Status: Dismissed (paras [68]-[73]).

The Authority considered Ms Ro's sick leave entitlement under her employment agreement. The agreement required the absent family member to be a "dependent" to qualify for sick leave; Ms Ro's family member did not meet that definition. Additionally, Ms Ro had not completed a leave application form (which she knew was required), and Ritchies said the claim had not previously been raised. The Authority noted annual leave may have been more appropriate but Ms Ro had been paid out all annual leave entitlements on termination. The sick leave claim was unsuccessful.

6. Whether Ms Ro breached good faith obligations under s 4(1A)(b) of the Act — Status: Established (para [61]).

The Authority found Ms Ro was in breach of her obligation under s 4(1A)(b) to be "active and constructive … responsive and communicative." It found she refused to engage constructively with Ritchies, declined meetings, declined to provide medical information, and rejected all offers of assistance including interpreting, despite being given ample time to understand correspondence. The Authority noted fairness operates both ways.

7. Whether procedural defects in Ritchies' termination process (including use of templated letters, absence of a preliminary decision, failure to elect a medical officer under clause 6.1, and requiring Ms Ro to work on 19 September 2025) rendered the dismissal unjustified — Status: Dismissed (paras [53]-[60]).

The Authority acknowledged the templated letters may not have been ideally tailored to Ms Ro's English comprehension level, but found this was overridden by Ms Ro's own request for written-only communication, giving her two weeks to seek translation assistance. It found no firm statutory requirement for a preliminary decision before termination. Non-compliance with clause 6.1 (requiring Ritchies to elect a medical officer) was found to be minor and caused no unfairness given Ritchies offered multiple alternatives. There were no safety concerns with day driving that would require suspension. These procedural matters did not render the dismissal unjustified.

8. Whether reinstatement should be ordered — Status: Dismissed (paras [2], [9](a), [67]).

Ms Ro sought reinstatement on a full-time basis. As the dismissal was found to be justified, no reinstatement was ordered. The earlier application for interim reinstatement had also been declined in a prior determination (Ro v Ritchies Transport Holdings Ltd [2025] NZERA 801).

9. Whether compensation for hurt, humiliation, and injury to feelings should be awarded — Status: Dismissed (paras [9](a), [67]).

Ms Ro sought compensation under s 123(1)(c)(i) of the Act. As the dismissal was found to be justified, no personal grievance remedy was established and no compensation was ordered.

10. Whether lost wages as a remedy for the personal grievance should be awarded — Status: Dismissed (paras [9](a), [67]).

Ms Ro sought remuneration lost as a result of the dismissal. As the dismissal was justified, no lost wages remedy was awarded.

11. Costs — Status: Dismissed (para [75]).

As Ritchies was self-represented, the Authority determined costs would lie where they fall; no costs order was made.

The claim was partially upheld: the unjustifiable dismissal, sick leave, and full-time wage arrears claims were all dismissed, but Ms Ro was awarded limited wage arrears for two fortnights where she was paid below her contracted part-time minimum hours.

Wage arrears: 12 hours at Ms Ro's relevant ordinary hourly rate (7 hours for the fortnight commencing 25 March 2024 and 5 hours for the fortnight commencing 26 August 2024), plus holiday pay and less any applicable deductions — payable within 28 days.
Reinstatement: No.
Compensation (hurt/humiliation): None ordered.
Lost wages (personal grievance): None ordered.
Costs: None ordered (costs lie where they fall).

Timothy Osbaldiston, a former operations and projects assistant at Primehort Distributors Limited, raised a personal grievance for unjustified dismissal after his position was made redundant in March 2025. The key legal questions concerned whether Primehort followed a fair and reasonable redundancy process, specifically whether it provided adequate information and a genuine opportunity to comment before making its decision. The Authority found the dismissal unjustified due to predetermination and failure to provide sufficient information, awarding $12,000 in compensation for hurt and humiliation and $1,200 in lost wages.

Applicant: Timothy Osbaldiston (employee)
Respondent: Primehort Distributors Limited (employer)

Applicant: Self-represented (applicant in person)
Respondent: Robert Thompson, advocate for the Respondent

Mr Osbaldiston commenced employment with Primehort on 20 September 2023 as an operations and projects assistant. On approximately 10 February 2025, he was transferred to a telesales role with a new job description and new key performance indicators. On 10 March 2025, a meeting was called by director Michael Wearmouth with projects and automation team employees to discuss the financial losses caused by mismanagement in the projects lane; the email convening the meeting did not mention the possibility of redundancies. On 17 March 2025, Mr Osbaldiston was advised his position in the projects lane had been made redundant, effective 28 March 2025, despite already having been removed from that lane a month earlier and having commenced new employment on 7 March 2025. Mr Osbaldiston contended the decision was predetermined, he was not given relevant financial information, and he was denied a genuine opportunity to comment. Primehort argued he was aware of the financial situation through access to a company dashboard and that efforts were made to meet with him post-meeting to discuss concerns.

1. Whether Mr Osbaldiston was unjustifiably dismissed by Primehort (personal grievance for unjustified dismissal) — Status: Established (paras [12]-[45]).

The statutory test is what a fair and reasonable employer could have done in all the circumstances at the time of dismissal, per s 103A(2) of the Employment Relations Act 2000 (the Act) and Grace Team Accounting Ltd v Brake [2014] NZCA 541. The Authority found Primehort failed on two grounds: first, it did not provide Mr Osbaldiston with sufficient relevant information to engage meaningfully with the redundancy proposal, as required by the good faith obligations in s 4(1A)(c) of the Act (citing Stellar Elements New Zealand Limited v Amesbury [2024] NZEmpC 136 and Simpsons Farms Limited v Aberhart [2006] ARC 13/06); second, the decision was predetermined, as meeting notes showed Primehort had already researched alternative employment and outlined severance terms without inviting employee feedback. The Authority found these failures went to the heart of a fair and reasonable process (citing Helloworld Travel Services (NZ) Limited v Unsworth [2023] NZEmpC 180), particularly given Mr Osbaldiston had already been moved out of the projects lane and was working excessive hours in the weeks before the redundancy decision.

2. Whether good faith obligations under s 4 of the Act were complied with — Status: Established (breach found) (paras [13]-[34], [43]).

Section 4(1A)(c) of the Act requires an employer proposing a decision that may adversely affect employment to provide access to relevant information and a genuine opportunity to comment before the decision is made. Primehort's pre-meeting email referenced financial losses and mismanagement but made no mention of potential redundancies; no financial reports were provided; and meeting notes showed no invitation for feedback. The Authority found that, given Mr Osbaldiston had been transferred out of the projects lane before the restructure and was working beyond contracted hours, he lacked the information and context necessary to engage with the proposal.

3. Whether compensation for hurt, humiliation and injury to feelings should be awarded under s 123(1)(c)(i) of the Act — Status: Established (paras [46]-[50]).

The Authority applied the principle that compensation for emotional harm is assessed by reference to the nature and extent of harm caused, not as a punitive measure (citing Paykel Ltd v Ahlfield [1993] 1 ERNZ 344 and Pyne v Invacare New Zealand Limited [2023] NZEmpC 179). Mr Osbaldiston was suddenly left without a job and was particularly distressed by the failure to consult. The Authority also weighed the seriousness of Primehort's procedural failures, finding none of the fundamental procedural requirements of a fair redundancy process were met, and awarded $12,000.

4. Whether reimbursement of lost wages should be ordered under s 128(2) of the Act — Status: Established (paras [51]-[54]).

Under s 128 of the Act, the Authority must order the lesser of actual lost remuneration or three months' ordinary time remuneration, subject to contribution and discretion to order a greater sum. Mr Osbaldiston's final day was 23 March 2025, and he had commenced new employment on 7 March 2025, meaning his actual lost wages were minimal. He sought the equivalent of one week's wages, and the Authority ordered $1,200 (gross).

5. Whether any remedy should be reduced for contributory conduct under s 124 of the Act — Status: Dismissed (paras [55]-[56]).

Section 124 allows the Authority to reduce remedies where the employee's blameworthy conduct contributed to the circumstances giving rise to the grievance. The Authority distinguished Murgatroyd v Xero (NZ) Ltd [2026] NZERA 305 on the facts, finding that because the decision was predetermined, Mr Osbaldiston was not asked for feedback, and he was not given sufficient information to provide any, he bore no responsibility for the situation. No reduction was made.

6. Whether either party was entitled to an award of costs — Status: Dismissed (para [58]).

As Mr Osbaldiston was self-represented, the Authority determined no costs order was appropriate and made none.

The claim was upheld: Mr Osbaldiston's dismissal was found unjustified, and remedies were awarded in full with no reduction for contribution; costs were not awarded.

Compensation (hurt, humiliation and injury to feelings, s 123(1)(c)(i)): $12,000, payable within 28 days.
Lost wages reimbursement (s 128(2)): $1,200 (gross), payable within 28 days.
Contribution reduction: None.
Costs: None ordered (applicant self-represented).
Reinstatement: Not sought or ordered.

Dr Michael Johnston, a former employee whose employer was determined by the Employment Court to be Youtap Mobile Money Asia Pte Limited (YMMA), a Singapore-incorporated company, applied to the Employment Relations Authority for leave to serve his statement of problem on YMMA overseas under clause 4A, Schedule 2 of the Employment Relations Act 2000. The key legal question was whether the applicable criteria for granting leave to serve documents outside New Zealand were satisfied. The Authority granted leave, finding it just and equitable to do so based on multiple factors under regulation 31A(6) of the Employment Court Regulations 2000.

Applicant: Michael George Johnston (employee/former employee)
Respondent: Youtap Mobile Money Asia Pte Limited (employer, Singapore-incorporated company)

Applicant: Stephen Langton, counsel for the Applicant
Respondent: No appearance

Dr Michael Johnston was employed initially by Youtap Limited (a New Zealand company) and, from 2015 when he moved to work in Singapore, by its wholly-owned subsidiary YMMA, incorporated in Singapore. The Employment Court (in Youtap Limited v Johnston [2025] NZEmpC 90) overturned an earlier ERA determination and held that YMMA — not Youtap Limited — was Dr Johnston's employer from 2015 until his employment was terminated. His individual employment agreement (IEA) was novated to YMMA before he moved to Singapore, was agreed in New Zealand between the parties, was expressly subject to New Zealand law, and was to be performed partly in New Zealand. Dr Johnston sought leave from the Authority to serve his statement of problem on YMMA in Singapore, as a prerequisite to pursuing his employment claims. YMMA was not present at the hearing, though the applicant noted that YMMA's counsel intended to object to the Authority's jurisdiction if leave were granted. No prior mediation or grievance steps are mentioned in relation to this specific application.

1. Whether leave should be granted under clause 4A, Schedule 2 of the Employment Relations Act 2000 to serve the statement of problem on YMMA outside New Zealand — Status: Established (paras [1], [7]-[8], [16]-[30]).

The Act requires leave to be sought and granted by the Authority before documents can be served on an overseas respondent. No specific criteria are prescribed in the Act or Employment Relations Authority Regulations 2000 for granting such leave; however, the Employment Court in Radford v Chief of New Zealand Defence Force and Ministry of Foreign Affairs and Trade [2021] NZEmpC 35 held that the criteria in regulation 31A(4) and (5) of the Employment Court Regulations 2000 equally apply to Authority applications, a position the Authority itself applied in New Zealand Airline Pilots Association Industrial Union of Workers Inc v Virgin Australia (NZ) Employment and Crewing Ltd [2019] NZERA 100. The Authority applied those criteria and found multiple grounds satisfied: the IEA was made in New Zealand, was expressly subject to New Zealand law, was to be performed partly in New Zealand, YMMA was incorporated and controlled by a New Zealand company, and the Authority has exclusive jurisdiction over the types of claims made. The Authority granted leave, being satisfied it was just and equitable to do so.

2. Whether the factors in regulation 19B of the Employment Relations Authority Regulations 2000 (relating to declining jurisdiction over overseas-party proceedings) applied — Status: Dismissed (para [13]).

Regulation 19B allows the Authority to decline to hear proceedings involving an overseas party if it is more appropriate for the matter to be resolved outside New Zealand, the applicant will have a fair opportunity elsewhere, the applicant will receive proper justice elsewhere, and the respondent will suffer unfair disadvantage if proceedings continue in New Zealand. The Authority noted that, based on the limited information available, none of these factors appeared to apply, and did not apply them to decline jurisdiction at this preliminary stage.

3. Whether the regulation 31A(6) discretionary factors supported granting leave — Status: Established (paras [27]-[29]).

Regulation 31A(6) of the Employment Court Regulations 2000 sets out factors the court (and, by application, the Authority) must consider when exercising its discretion to grant leave. The Authority found the following factors weighed in favour of granting leave: YMMA, though Singapore-incorporated, is controlled by a New Zealand company (reg. 31A(6)(a)); YMMA would not be significantly more inconvenienced by New Zealand proceedings than Singapore proceedings (regs. 31A(6)(a) and (b)); the claims involve New Zealand employment standards and minimum entitlements uniquely within the Authority's exclusive jurisdiction, with no equivalent Singapore forum (reg. 31A(6)(e)); denial of leave would leave the applicant without any remedy and the claims are said to be substantial (reg. 31A(6)(c)); and witnesses and documents are located in New Zealand, making New Zealand proceedings less expensive and more convenient (reg. 31A(6)(f)). On this basis, the Authority was satisfied it was just and equitable to grant leave.

The application for leave to serve the statement of problem on the respondent in Singapore was upheld in full.

No substantive remedy ordered at this stage. The determination grants procedural leave to serve the statement of problem on YMMA overseas. Jurisdiction and substantive claims remain to be determined; YMMA retains the right under regulation 19A(2) to object to the Authority's jurisdiction or lodge a statement in reply once served.