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[COSTS ONLY]

Rex Matthews (employee/applicant) brought an unjustifiable dismissal claim against Napier City Automotive Limited (employer/respondent), which was dismissed in full by the Authority's earlier determination ([2026] NZERA 116). This costs determination resolves the outstanding costs question following that dismissal. The Authority applied the standard daily tariff for a two-day investigation meeting, rejecting both the respondent's application for an uplift and the applicant's application for a downward adjustment, awarding $8,000 in costs against the applicant.

Applicant: Rex Matthews (employee)
Respondent: Napier City Automotive Limited (employer)

Applicant: Justin Cameron, counsel for the Applicant
Respondent: Jol Bates, counsel for the Respondent

The Authority's substantive determination, issued on 20 March 2026, dismissed Rex Matthews' claim of unjustifiable dismissal against Napier City Automotive Limited. The parties were unable to resolve costs between themselves and filed memoranda on the issue. Matthews advised he had filed a challenge to the Authority's determination in the Employment Court and sought a deferral of the costs determination pending a stay application; however, no stay application had been made before the court by the time the costs determination was issued. The investigation meeting was held over two days with parties, counsel, and witnesses attending in person, though the second day concluded at 12:30 pm. The respondent sought $11,000 (tariff plus uplift) citing significant document volume and complete success, while the applicant sought $6,250 (tariff with downward adjustment for the half-second day), citing no unusual complexity and late production of documents by the respondent.

1. Whether the costs determination should be deferred pending a stay application filed in the Employment Court — Status: Dismissed (paras [7]-[8]).

The applicant's counsel advised that a challenge and stay application had been or would be filed in the Employment Court, and requested deferral. The Authority noted that no stay application had actually been made before the court at the time of issuing this determination, and considered it proper to resolve and dispose of the costs application so as to bring all matters before the Authority to an end.

2. Whether an uplift above the standard two-day tariff ($8,000) was warranted — Status: Dismissed (paras [9]-[10], [17]-[21]).

The Authority applied the principles from PBO Limited (formerly Rush Security Limited) v Da Cruz [2005] 1 ERNZ 808, confirmed in Fagotti v Acme and Co Limited [2015] NZEmpC 135 at 114, that costs awards are to be modest and represent a reasonable contribution, not a punishment. The respondent argued that significant documentation, complex business records, and success on all points justified an uplift to $11,000. The Authority rejected this, finding the documentation was not irrelevant or unusually complex, was directly related to the applicant and the employment relationship, and did not extend hearing time beyond what was reasonably expected. The Authority also cautioned against an uplift that could be seen as inappropriately penalising the applicant for losing, and noted that the early conclusion of the second day already effectively incorporated something equivalent to an uplift within the standard tariff.

3. Whether a downward adjustment from the two-day tariff was warranted — Status: Dismissed (paras [11]-[12], [22]-[24]).

The applicant argued that the second day of the investigation meeting was effectively a half-day (concluding at 12:30 pm), justifying a reduction of $1,750, and also criticised the respondent for late production of point-of-sale records and lack of written policies. The Authority rejected these arguments, finding that neither the late production nor the policy deficiencies extended hearing time or rose to the level of inappropriate or delaying conduct sufficient to reduce the tariff. The Authority noted that the matter was scheduled for two full days and counsel and the Authority needed to set aside that time regardless.

4. Determination of the appropriate costs award at the standard tariff for a two-day investigation meeting — Status: Established (paras [4]-[6], [15], [24]-[25]).

The Authority applied the standard daily tariff of $4,500 for the first hearing day and $3,500 for the second and subsequent days, consistent with its settled approach as a starting point for costs. As neither an uplift nor a downward adjustment was warranted, the two-day tariff of $8,000 was held to be the appropriate and reasonable contribution to costs. Matthews was ordered to pay $8,000 to the respondent within 28 days.

The costs application was resolved in favour of the respondent at the standard two-day tariff, with neither an uplift nor a downward adjustment applied.

Costs: $8,000 (inclusive), payable by Rex Matthews to Napier City Automotive Limited within 28 days of the date of this determination (20 August 2026). No other remedies ordered (this is a costs-only determination following dismissal of the substantive claim).

[COSTS ONLY]

Mark John Betti (employee/applicant) brought an interim reinstatement application against G & S Brothers Limited (employer/respondent), which was declined in an earlier determination ([2026] NZERA 251). Costs were reserved in that determination. This costs determination resolves the quantum of costs payable by Mr Betti to the respondent, with the Authority applying its standard daily tariff approach and ordering a total costs award of $6,250.

Applicant: Mark John Betti (employee)
Respondent: G & S Brothers Limited (employer)

Applicant: Conor Lennon, counsel for the Applicant
Respondent: Paul McBride, counsel for the Respondent

Mr Betti brought an application for interim reinstatement to the payroll of G & S Brothers Limited, which was declined by the Authority in a determination dated 28 April 2026 ([2026] NZERA 251). No other orders were made in that determination, and costs were reserved. The matter was determined on the papers following written submissions from both parties, with no in-person hearing. The parties were unable to resolve costs between themselves and filed memoranda. The respondent sought indemnity costs of $12,000 plus GST (or alternatively $7,500 as a reasonable contribution), arguing the matter involved specific factual and legal issues, required onerous preparation, and that the applicant's claims had no reasonable prospect of success. The applicant submitted that only half a day's tariff ($2,250) should be awarded, arguing that the matter being determined on the papers reduced costs, and that an uplift was not justified merely because the application failed.

1. Whether indemnity costs should be awarded against the applicant — Status: Dismissed (paras [19]).

The Authority applied the principles established 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 at 114, that costs should be modest and are not to be used as punishment. The Authority found the applicant's position was not so unmeritorious or frivolous as to warrant indemnity costs. The Authority also noted that costs awards are a contribution to costs incurred, not a reimbursement, and rejected the respondent's submission that the District Court or Employment Court cost scales should guide the assessment.

2. Whether the appropriate starting point for costs was the first day's daily tariff ($4,500) — Status: Established (paras [17]).

The Authority applied its standard daily tariff approach (currently $4,500 for the first day, $3,500 for subsequent days) as the starting point. Although the matter was determined on the papers, the Authority found this did not mean no costs award was appropriate, recognising that written submissions reduced hearing time but still required substantive work. The Authority assessed the matter as not a simple one, but not so complex as to require an in-person hearing, and set the starting point at $4,500 (equivalent to the first day's tariff).

3. Whether an uplift on the starting tariff figure was warranted — Status: Partially established (paras [18]-[22]).

The Authority considered whether conduct or other factors justified an uplift. It rejected indemnity costs and did not accept the respondent's submission that an award approaching two days' tariff was appropriate. However, it found that some uplift was warranted because substantive and meaningful submissions were required and there was an element of urgency to the proceedings as requested by the applicant. The Authority applied an uplift equivalent to half of the second day's tariff ($1,750), while remaining mindful that costs should be modest and not used to punish an unsuccessful applicant.

4. Whether GST should be included in the costs award — Status: Dismissed (paras [23]).

The Authority ordered that no GST would be awarded on the costs sum, resulting in a total costs award of $6,250 inclusive.

The costs application was partially upheld; Mr Betti is ordered to pay $6,250 to G & S Brothers Limited as a contribution to costs, with no GST awarded.

Costs: $6,250.00 (inclusive, no GST) payable by the applicant (Mark John Betti) to the respondent (G & S Brothers Limited) within 28 days of the date of the determination. No other remedies ordered (this is a costs-only determination following the decline of the interim reinstatement application).

Paul Brendon Brown, a long-serving butcher employed by Alliance Group Limited since 1987, was summarily dismissed on 30 January 2026 after failing a second workplace drug test, despite having disclosed his use of prescribed medicinal cannabis to Alliance. The key legal questions were whether his conduct constituted serious misconduct, whether the dismissal process and substantive decision met the fair and reasonable employer standard under s 103A of the Employment Relations Act 2000, and whether reinstatement and other remedies were appropriate. The Authority found the dismissal unjustified on both procedural and substantive grounds, ordered reinstatement (subject to an occupational health assessment), awarded $25,000 compensation for hurt and humiliation, and granted lost wages for the period from dismissal to the investigation meeting, with no reduction for contributory conduct.

Applicant: Paul Brendon Brown (employee/butcher)
Respondent: Alliance Group Limited (employer)

Applicant: Mary-Jane Thomas and Sam Welsh (counsel — firm not stated)
Respondent: Shaun Brookes and Amiria Bates (counsel — firm not stated)

Paul Brendon Brown commenced employment with Alliance Group Limited at the Mataura meat works in 1987, most recently as an A-grade butcher. Following a serious workplace injury in 2016 that caused chronic pain, Mr Brown was prescribed medicinal cannabis oil in 2022 and disclosed this prescription to Alliance's occupational health nurse and production manager. He failed a drug (saliva) test in July 2025, was issued a final written warning (not contested), placed on a Drug and Alcohol Rehabilitation Contract, and required to complete a counselling course tailored to recreational drug users. On 27 August 2026 [sic, presumably 2025 contextually, but the determination records a test on 27 August 2026 and dismissal on 30 January 2026 — the chronology in the document is internally complex], Alliance administered a targeted (not random) drug test and Mr Brown again returned a non-negative result. A brief disciplinary meeting on 30 January 2026 followed, lasting approximately 22 minutes; the decision to summarily dismiss was announced at that meeting. Mr Brown raised his prescription cannabis use and his intention to consult his GP about alternatives, but Alliance did not conduct any meaningful investigation into those contextual factors. Mr Brown raised a personal grievance through his union on 10 February 2026, mediation failed, and the matter proceeded to investigation meeting on 29–30 June 2026. Mr Brown sought reinstatement and compensatory remedies; Alliance opposed reinstatement on safety and trust grounds and raised a separate chair-pulling incident as subsequently discovered misconduct.

1. Whether Alliance conducted a sufficient investigation of the allegations against Mr Brown, satisfying s 103A(3)(a) of the Employment Relations Act 2000 — Status: Established (breach found) (paras [51]-[58]).

The Authority applied the s 103A(3) framework, which requires the employer to sufficiently investigate allegations given its available resources. Alliance had access to in-house counsel and group HR resources and was held to a high standard. The Authority found the investigation was extremely limited, concentrating only on the testing documentation, and failed to interview co-workers about signs of impairment, explore how Mr Brown's prior prescription disclosure was managed, or seek independent medical advice on the effects of his medication. Ms Wilson conceded in evidence that the investigation was very limited. The Authority found Alliance did not satisfy the investigation requirement of s 103A(3)(a).

2. Whether Alliance raised issues of concern with Mr Brown prior to deciding to dismiss, satisfying s 103A(3)(b) — Status: Partially established (paras [58]).

The Authority found Alliance fulfilled only the bare minimum of identifying concerns and holding a meeting with Mr Brown, but the process quickly morphed from an investigation into a disciplinary meeting without genuine reflection. The concerns were not adequately raised in a way that allowed meaningful engagement with Mr Brown's contextual explanations. While the threshold requirement of raising concerns was technically met, the overall process was inadequate.

3. Whether Mr Brown was afforded a reasonable opportunity to respond to identified concerns, satisfying s 103A(3)(c) — Status: Dismissed (breach found) (paras [52]-[58]).

Although Mr Brown and his union organiser were present at the meeting and Mr Brown spoke at length, the Authority found the meeting was too brief and the decision to dismiss had effectively been made before genuine deliberation occurred. Mr Brown raised legitimately mitigating circumstances that were not adequately considered. The Authority rejected Alliance's submission that Mr Brown had a full opportunity to respond when represented.

4. Whether Alliance genuinely considered Mr Brown's explanation before deciding to dismiss, satisfying s 103A(3)(d) — Status: Dismissed (breach found) (paras [37]-[38], [54]-[58]).

The Authority found the decision to dismiss had effectively been made before any genuine reflection. Mr Caughey communicated the dismissal decision unequivocally during the meeting and did not consider Mr Brown's disclosed prescription cannabis use as a mitigating factor. Ms Wilson said managers had very limited discretion and that termination was automatic after a second failed drug test. The Authority found too much emphasis was placed on a rigid, simplistic application of the drug policy.

5. Whether Mr Brown's conduct constituted serious misconduct justifying summary dismissal (substantive justification) — Status: Dismissed (paras [59]-[72]).

Applying the two-step test from Emmanuel v Waikato District Health Board [2019] NZEmpC 81, the Authority considered whether the conduct was capable of amounting to serious misconduct and whether dismissal was warranted in all circumstances. The Authority found that given Mr Brown had disclosed his prescription use, was not observed exhibiting impaired behaviour, and Alliance had not established that he knowingly took medication in a manner he knew or ought to have known would cause a non-negative result, serious misconduct was not objectively established. A prior non-contested warning could not convert automatically into serious misconduct. The Authority also considered Australian Fair Work Commission decisions (Gauci v DPWorld Brisbane Pty Ltd; Mills v Glamorgan Spring Bay Council) as persuasive, noting that where prior disclosure of medicinal cannabis is known, the employer must consider individual circumstances and alternative options. Alliance's failure to consider these factors meant the substantive conclusion of serious misconduct could not be sustained.

6. Whether Alliance's drug and alcohol policy, and its obligation to manage safety risks in a safety-sensitive environment, justified dismissal under s 103A(4) — Status: Dismissed (paras [65]-[70]).

Alliance submitted that the safety-sensitive nature of the work (heavy machinery, abattoir environment) provided additional justification. The Authority acknowledged the legitimacy of drug testing in safety-sensitive environments, referencing Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 and Gauci. However, it distinguished those cases on the basis that Alliance knew of Mr Brown's disclosed prescription for a lengthy period, had not established he was impaired, and had not genuinely explored alternatives. The safety justification did not override the obligation to consider individual medical circumstances consistent with good faith obligations.

7. Whether an issue of subsequently discovered misconduct (the chair-pulling incident) arose, and whether it could inform reinstatement — Status: Dismissed (paras [78]-[82]).

Alliance raised evidence of a 22 January 2026 incident where Mr Brown allegedly pulled a chair from under a co-worker causing a minor injury. The Authority found Alliance had sufficient knowledge of the incident before the dismissal and chose not to include it in the disciplinary process, concluding they had insufficient evidence to put it to Mr Brown. The Authority held no issue of subsequently discovered misconduct arose. The Authority also declined to make an order permitting Alliance to investigate the chair incident post-reinstatement, as this would licence an investigation of a matter that was not dealt with at the time.

8. Whether reinstatement was practicable and reasonable under ss 123(1)(a) and 125 of the Act — Status: Established (paras [73]-[87]).

The Authority applied Christieson v Fonterra Co-operative Group Ltd [2021] NZEmpC 142, noting practicability and reasonableness are distinct considerations, and Lewis v Howick College Board of Trustees [2010] NZCA 320 on the onus resting with the employer. Alliance argued safety concerns made reintegration impractical. The Authority found no insurmountable practical difficulties and noted that, as trust and confidence had not been legitimately destroyed, Alliance had no practical or reasonable basis to oppose reinstatement. Reinstatement was ordered subject to an occupational health assessment.

9. Whether lost wages should be awarded under s 123(1)(b) of the Act — Status: Established (paras [89]-[90]).

The Authority found that given the unjustified summary dismissal and reinstatement order, Mr Brown's inability to find alternative employment in his area was reasonable. Lost wages were awarded for the period from 30 January 2026 (last working day) to 29 July 2026 (six months), to be calculated on the average of the preceding 12 months' total earnings.

10. Whether compensation for hurt, humiliation, and loss of dignity should be awarded under s 123(1)(c)(i) of the Act — Status: Established (paras [91]-[93]).

Mr Brown gave evidence of anxiety, depression, loss of purpose, and despair following his abrupt summary dismissal after 38 years' employment. The Authority accepted this evidence and found the dismissal caused genuine humiliation and loss of dignity, notwithstanding that Alliance management had treated Mr Brown with dignity during the disciplinary meeting itself. The Authority awarded $25,000.

11. Whether any remedy should be reduced due to Mr Brown's contributory conduct under s 124 of the Act — Status: Dismissed (paras [94]-[96]).

The Authority applied the framework from Maddigan v Director General of Conservation [2019] NZEmpC 190. Given the finding that no serious misconduct was established and no evidence of reckless disregard for safety, the Authority found it would be conceptually inconsistent to treat Mr Brown's failing of a second drug test as a contribution to his personal grievance. No reduction was applied.

12. How costs should be dealt with — Status: Reserved (paras [98]-[101]).

The Authority reserved costs and encouraged the parties to resolve costs between themselves. A process was set out for filing and replying to a costs memorandum within 28 and 14 days respectively if needed.

The claim was upheld in full: the dismissal was found unjustified on both procedural and substantive grounds, reinstatement was ordered (subject to occupational health assessment), lost wages were granted, $25,000 compensation was awarded, and no reduction for contributory conduct was applied.

Reinstatement: Yes — permanent reinstatement to the position and seniority formerly occupied under s 123(1)(a), with Mr Brown placed back on the payroll from 23 August 2026 at his current equivalent wage; subject to completion of a specialist occupational health assessment before returning to active duties. If not completed by 2 October 2026, leave was granted for the parties to return to the Authority.
Lost wages: To be calculated on the average of the preceding 12 months' total earnings prior to dismissal, for the period 30 January 2026 to 29 July 2026 (approximately six months), under s 123(1)(b) — exact dollar amount not yet fixed.
Compensation (hurt/humiliation/loss of dignity): $25,000 under s 123(1)(c)(i), without deductions.
Contribution reduction: None.
Costs: Reserved — parties encouraged to resolve between themselves; process prescribed for Authority determination if required.

Four employee applicants (Amit Verma, Nishal Nikesh Lal, Siddhanth Prasad, and Mukeshwar Prasad) sought recovery of unpaid wage arrears and other entitlements from Ameer Akhtar Ali personally, following prior Authority determinations finding their employer Fiji Food Distributors Limited (FFDL) liable for employment standards breaches. The key legal question was whether Ali, as a person involved in those breaches, could be held personally liable for the wage arrears under ss 142W and 142Y of the Employment Relations Act 2000, given that FFDL had since gone into liquidation. The Authority found Ali personally liable and ordered payment of the full wage arrears and unlawful premium totalling over $464,000, plus interest and costs.

Applicant: Amit Verma (First Applicant/employee), Nishal Nikesh Lal (Second Applicant/employee), Siddhanth Prasad (Third Applicant/employee), Mukeshwar Prasad (Fourth Applicant/employee)
Respondent: Ameer Akhtar Ali (director of Fiji Food Distributors Limited/person involved in employment standards breaches)

Applicant: Rupert Ward, counsel for the Applicants
Respondent: No appearance

The four applicants were employees of Fiji Food Distributors Limited (FFDL), of which Ameer Akhtar Ali was a director. In a first determination dated 20 October 2025 (Prasad and Ors v Fiji Foods Distributors Limited and Ors [2025] NZERA 659), the Authority found FFDL had committed various breaches of employment standards including failure to pay wages and statutory entitlements, and that FFDL had unlawfully obtained a premium payment from Amit Verma to secure his employment. A second determination dated 21 April 2026 ([2026] NZERA 239) fixed the quantum of penalties against FFDL and granted each applicant leave to recover wage arrears from Ali personally under ss 142W and 142Y of the Employment Relations Act 2000 (the Act), as a person involved in the breaches. Neither the awards nor the penalties from those determinations were paid, and FFDL subsequently went into liquidation. On 12 June 2026, the applicants applied for orders against Ali personally; Ali did not participate in the proceedings, did not file a statement in reply or brief of evidence, and made no appearance, though the Authority was satisfied he had been served.

1. Whether Ameer Akhtar Ali is personally liable for wage arrears and the unlawful premium as a person involved in FFDL's breaches of employment standards under ss 142W and 142Y of the Act — Status: Established (paras [5], [7]).

Section 142W of the Act provides that a person involved in a breach of employment standards may be held liable, and s 142Y permits recovery against such a person where the Authority grants prior leave. The Authority had already granted that leave in the second determination ([2026] NZERA 239). On the uncontested evidence before it (including a sworn affidavit from Nishal Nikesh Lal), the Authority found Ali was indeed a person involved in the identified breaches of failing to pay wages and statutory entitlements, and in obtaining an unlawful premium from Verma. Ali was therefore found personally liable to pay the amounts established in the first determination.

2. Whether recovery of penalties from Ali personally was available to the applicants under s 142X of the Act — Status: Dismissed (para [5]).

Section 142X(2) of the Act confines recovery of penalties against a person involved in a breach to actions initiated "only by a Labour Inspector." Accordingly, the applicants could not themselves pursue recovery of the penalties ordered against FFDL from Ali personally. The Authority noted this limitation expressly and made no penalty order against Ali.

3. Whether Amit Verma could recover the unlawful premium payment from Ali personally — Status: Established (paras [5], [7], [8]).

The Authority confirmed that while penalty recovery by applicants from Ali was barred under s 142X(2), the unlawful premium of $8,000 paid by Verma to secure employment was recoverable as a monetary amount (not a penalty) from Ali personally. This was included in the order against Ali pursuant to ss 142Y and 137 of the Act.

4. Whether interest was payable on the unpaid wage arrears — Status: Established (para [9]).

The Authority ordered interest on the unpaid wage arrears in accordance with Schedule 2 of the Interest on Money Claims Act 2016, running from 20 October 2025 (the date of the first determination) until actual payment. No contrary submissions were received.

5. Whether a costs contribution should be ordered against Ali in favour of the applicants — Status: Established (paras [11]–[12]).

Costs are at the Authority's discretion. The applicants were fully successful in establishing Ali's personal liability and obtaining compliance orders. Counsel sought a contribution toward costs of preparing the application, submissions and representation. The Authority found no reason to decline a costs order and fixed a contribution of $1,500 payable within 28 days.

The claims were upheld in full; Ameer Akhtar Ali was ordered to pay wage arrears totalling $456,363.35 plus an $8,000 unlawful premium reimbursement to Amit Verma, interest, and a $1,500 costs contribution.

Wage arrears ordered against Ameer Akhtar Ali personally:
- Siddhanth Prasad: $85,918.52
- Nishal Nikesh Lal: $136,802.31
- Amit Verma: $161,552.59 (wage arrears) + $8,000 (reimbursement of unlawful premium)
- Mukeshwar Prasad: $72,090.93
Total monetary orders: $464,363.35
Interest: Payable on unpaid wage arrears in accordance with Schedule 2 of the Interest on Money Claims Act 2016 from 20 October 2025 until payment.
Payment deadline: All orders to be met by no later than 25 September 2026.
Reinstatement: No.
Costs: $1,500 payable by Ameer Akhtar Ali within 28 days of the determination.
Penalties: Not ordered against Ali (recovery limited to Labour Inspectors under s 142X(2) of the Act).

Matthew Apperley, a retail worker, brought claims against his employer Scott and Rickets Limited (SRL) arising from an incident on 26 December 2024 when he felt unwell at work and says he was refused sick leave. He sought remedies for constructive dismissal and breach of good faith, as well as raising subsidiary issues about Privacy Act compliance, victim impact statements, and welfare checks. The Authority dismissed all claims, finding no breach of duty occurred and that SRL had engaged actively and in good faith with Mr Apperley's concerns throughout.

Applicant: Matthew Craig Apperley (employee)
Respondent: Scott and Rickets Limited (employer)

Applicant: Paula Kay, advocate
Respondent: Julie Simpson, advocate

Mr Apperley commenced employment with SRL in 2020, working in stock and the garden area. On 26 December 2024 (a public holiday), he attended work, felt unwell, and spoke to duty manager Ms Jakki Hamer about going home. Mr Apperley claimed he was told by both Ms Hamer and duty manager Mr Daniel Craig that he could not take sick leave or go home because it was a public holiday; both managers denied this. Mr Apperley remained at work for his full shift, and the following day tested positive for Covid-19 and was granted paid sick leave without issue. Mr Apperley subsequently raised concerns with SRL management, received multiple apologies and confirmations of his sick leave entitlements from senior managers, but SRL declined his request for $5,000 compensation. Mr Apperley resigned from SRL on 10 April 2025 after securing a new job as a forklift driver, thanking management warmly on his way out, and then filed a personal grievance claim for constructive dismissal and breach of good faith.

1. Whether SRL breached its obligations by refusing Mr Apperley's request to take sick leave — Status: Dismissed (paras [40]-[47]).

The Authority considered whether SRL actively refused a clear entitlement to sick leave under the Holidays Act 2003. Applying the evidence, the Authority found that the situation was more likely a miscommunication or misunderstanding than an unambiguous refusal: Ms Hamer's evidence was that she did not refuse sick leave and matters did not reach that point; Mr Apperley himself did not forthrightly insist on going home, did not re-approach any of the several floor managers during the day, worked his full shift without complaint, and appeared in good spirits. The Authority also noted that when Mr Apperley made an unambiguous sick leave request the following day, it was promptly granted — consistent with SRL being aware of and willing to meet its obligations. On balance, no breach of duty was found.

2. Whether Mr Craig told Mr Apperley that sick leave could not be taken on a public holiday as a separate breach — Status: Dismissed (paras [48]-[50]).

The Authority examined whether this allegation — that Mr Craig baldly stated company policy was to refuse sick leave if a staff member had clocked in on a public holiday — was made out on the facts. The Authority found this implausible in light of the evidence of multiple senior managers who described such a policy as both unlawful and fundamentally inconsistent with how SRL operated as a 7-day business. The Authority further noted the internal inconsistency this would create with Ms Hamer's own conduct. This claim was not established.

3. Whether SRL breached its duty of good faith under s 4 of the Employment Relations Act 2000 by disregarding Mr Apperley's concerns when raised — Status: Dismissed (paras [51]-[65]).

The Authority assessed SRL's conduct against the s 4 good faith obligation to be active, constructive, and responsive. It found that SRL promptly met with Mr Apperley after receiving his email of concern, provided acknowledgment of his sick leave rights, offered personal apologies from three senior managers including the Operations Manager and General Manager Retail, committed to raising the matter with the senior leadership team, and continued to engage seriously every time Mr Apperley raised the issue again. The Authority found that SRL's refusal to pay $5,000 did not amount to disregarding Mr Apperley, as he had no entitlement to that sum; his reliance on advice relayed from his father was not a proper basis for such a claim. No breach of good faith was established.

4. Whether Mr Apperley was constructively dismissed — Status: Dismissed (paras [38]-[39], [62]-[67]).

The Authority applied the test from Weston v Advkit Para Legal Services Ltd [2010] NZEmpC 140, requiring a breach of duty sufficiently serious to make the resignation reasonably foreseeable, and the principle from NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd (1990) ERNZ Sel Cas 791 that there must be a repudiatory breach indicating the employer does not intend to be bound by the contract. Having found no breach of either the sick leave or good faith obligations, the constructive dismissal claim necessarily failed. The Authority additionally noted that Mr Apperley had resigned only after securing a new job, expressed positive sentiments on leaving, and never told any manager he was resigning due to loss of trust — further indicating the ending of employment was not at the employer's instigation.

5. Whether the Authority had jurisdiction under the Health and Safety at Work Act 2015 — Status: Dismissed (para [36]).

The Authority noted that it has no jurisdiction under the Health and Safety at Work Act 2015 and accordingly did not consider submissions made under that Act, instead confining its analysis to employment relationship problems under the Employment Relations Act 2000.

6. Whether Privacy Act 2020 obligations were breached in relation to CCTV footage — Status: Dismissed (paras [68]-[69]).

The Authority noted it has no jurisdiction under the Privacy Act 2020. It also considered whether Information Privacy Principles 10 and 11 were properly engaged and found they were not: there was no evidence that CCTV footage had been disclosed to third parties (Principle 11) or used for a purpose other than that for which it was collected (Principle 10). No further consideration was warranted.

7. Whether a victim impact statement was required to be filed — Status: Dismissed (paras [70]-[72]).

The Authority found that criminal sentencing procedures (victim impact statements) have no place in civil employment tribunal proceedings. Further, Mr Apperley had been given multiple opportunities throughout the process to place impact evidence before the Authority and had done so at each stage; no further action was required.

8. Whether SRL failed to conduct welfare checks — Status: Dismissed (para [73]).

The Authority found that no obligation had been identified by Mr Apperley with sufficient particularity. On the evidence, SRL's duty managers had given Mr Apperley lighter duties, observed him working normally throughout the day, and noted he appeared in good spirits. Given that neither party was aware at the time that Mr Apperley had Covid-19, no additional welfare measures were required.

9. Costs — Status: Reserved (paras [75]-[77]).

The Authority reserved costs and encouraged the parties to resolve costs between themselves. A process was prescribed: if agreement cannot be reached, the respondent may file a memorandum on costs within 28 days of the determination, with the applicant having 14 days to reply. The Authority noted that the investigation meeting took less than a full day and that it would assess costs on a scale upwards or downwards as appropriate.

All claims were dismissed in their entirety; no orders were made.

None ordered. Costs reserved pending agreement between the parties or further memoranda.

[COSTS ONLY]

This is a costs determination following a substantive decision in which Benjamin Fuller's employment claims against Super Cheap Auto (New Zealand) Pty Limited (SCA) were entirely unsuccessful. SCA, as the successful party, applied for a costs award exceeding the standard daily tariff, relying on an effective Calderbank offer and alleged misconduct by Mr Fuller's advocate. The Authority awarded costs of $10,000, representing an uplift above the standard tariff but well below the $25,000–$28,000 sought by SCA.

Applicant: Benjamin Fuller (employee)
Respondent: Super Cheap Auto (New Zealand) Pty Limited (employer)

Applicant: Lawrence Anderson, advocate
Respondent: Emma Crowley, counsel

In a substantive determination dated 2 June 2026 ([2026] NZERA 335), the Authority dismissed all of Mr Fuller's employment claims and awarded no remedies, reserving costs. The parties were unable to resolve costs between themselves, and SCA applied for a costs award. SCA's actual in-scope legal costs were $61,857.13 (exclusive of GST). SCA had made a settlement offer of $5,000 on 24 November 2025 (the Calderbank offer), which expired on 5 December 2025 without acceptance. SCA submitted that rejection of the offer, the conduct of Mr Fuller's advocate (including resisting mediation, non-compliance with Authority directions on redactions, and a "scattergun" approach to claims), and unnecessary expansion of issues during the investigation all justified a significant uplift from the tariff. Mr Fuller accepted SCA's entitlement to costs at the standard tariff ($4,500) but opposed any uplift, arguing the offer was reasonably rejected because it did not address the status of a final written warning, and that no causal connection was established between any alleged misconduct and additional costs.

1. Whether costs should be awarded in favour of SCA as the successful party, and what the appropriate starting point is — Status: Established (paras [3]–[4], [22]).

The Authority's power to award costs derives from clause 15 of Schedule 2 of the Employment Relations Act 2000. Costs are discretionary, must be used in a principled manner (citing PBO Limited v Da Cruz [2005] 1 ERNZ 808 and Faggotti v Acme & Co Limited [2015] NZEmpC 135), and generally follow the event. The standard daily tariff is $4,500 for the first day of an investigation meeting and $3,500 for each subsequent day. Because SCA was wholly successful, the Authority accepted the starting point of $5,375 (reflecting one investigation day plus applicable adjustments) as the base tariff figure.

2. Whether the Calderbank offer justified an uplift above the daily tariff — Status: Partially established (paras [23]–[25]).

The Authority accepted that SCA's offer of $5,000 made on 24 November 2025 was a valid and effective Calderbank offer: it was clear, gave reasonable time for acceptance, and explained the consequences of non-acceptance. The key question was whether rejection was unreasonable at the time. Mr Fuller argued the offer did not resolve the status of a final written warning, which was central to him, and that the offer was expressed inclusive of costs without identifying the costs portion. The Authority accepted the warning issue was a matter of genuine significance, but noted that Mr Fuller ultimately obtained nothing. On balance, the rejection was a relevant factor supporting some uplift, but did not justify anything approaching the level SCA sought.

3. Whether the conduct of Mr Fuller's advocate (resisting mediation, non-compliance with redaction directions, and "scattergun" approach to claims) justified a further costs uplift — Status: Partially established (paras [26]–[28]).

The Authority acknowledged that considerable time and effort was spent on procedural and evidential disputes, some requiring Authority intervention, and that aspects of the advocate's approach prolonged procedural issues. However, the Authority found that SCA had not identified with sufficient precision the additional costs caused by that conduct, and was not satisfied that a substantial uplift on this basis was warranted. Separately, the Authority accepted that Mr Fuller's expansion of claims during the investigation required additional replies, evidence, and submissions from SCA beyond what would otherwise have been necessary, and that SCA's costs were thereby increased.

4. Whether SCA should be awarded costs for preparation of its costs memorandum — Status: Dismissed (para [30]).

SCA sought $3,000 for costs in preparing its costs memorandum. The Authority noted that costs for costs memoranda are not ordinarily awarded and was not satisfied there was a basis to depart from that approach. This claim was declined.

The claim for costs was partially upheld: SCA is awarded costs of $10,000 (above tariff but well below the amount sought), with no award for costs memorandum preparation.

Costs: $10,000 payable by Benjamin Fuller to Super Cheap Auto (New Zealand) Pty Limited within 28 days of the date of this determination (19 August 2026). No award for costs of preparing the costs memorandum.

Paula Cameron, a former worker at Sureplan Financial Limited, sought to raise personal grievances including sexual harassment arising from her engagement with Sureplan, which she claims began around mid-2015 and ended by late 2016. The central legal question was whether Ms Cameron raised her personal grievances within the 90-day statutory time limit under s 114 of the Employment Relations Act 2000. The Authority determined that Ms Cameron had sufficient awareness of her employee status and potential claims by December 2016, that her grievances were raised well outside the 90-day limit, and that no exceptional circumstances existed to justify granting leave to raise them out of time — resulting in dismissal of the claims.

Applicant: Paula Cameron (employee/former worker)
Respondent: Sureplan Financial Limited (employer)

Applicant: Self-represented (in person)
Respondent: John Schell for the Respondent

Ms Cameron was engaged by Sureplan Financial Limited at some point before July 2015, on what she believed at the time to be an independent contractor basis. The engagement appears to have ended by late 2016, as evidenced by an email Ms Cameron sent to John Schell (Sureplan's director) on 2 December 2016. Ms Cameron contended she did not become aware she was an employee (rather than a contractor) until 2024, when she studied an Advanced Employment Law paper, and that she raised her personal grievance within 90 days of that realisation. Sureplan disputed this timeline, relying on Ms Cameron's own December 2016 email as evidence that she had understood her employment status and contemplated legal action well before 2024. Sureplan also declined to consent to the grievances being raised out of time. The matter was determined on the papers by agreement of both parties.

1. Whether Ms Cameron raised her personal grievances within the 90-day statutory time limit under s 114(1) of the Employment Relations Act 2000 — Status: Dismissed (paras [11]-[19]).

Section 114(1) of the Act requires an employee to raise a personal grievance within 90 days of the date the action occurred or came to the employee's notice, whichever is later. The Authority examined Ms Cameron's December 2016 email to Mr Schell and found it contained explicit references to herself as an "employee," references to Sureplan as her "employers," statements about having studied law, having consulted a lawyer, and having contemplated suing Sureplan for "hurt and humiliation." The Authority found these statements demonstrated that Ms Cameron had sufficient legal understanding by December 2016 to regard herself as an employee and to contemplate a personal grievance claim under s 123(1)(c) of the Act. Accordingly, the Authority determined that Ms Cameron's personal grievance was raised significantly outside the 90-day time limit.

2. Whether Ms Cameron should be granted leave to raise her personal grievances outside the 90-day statutory time limit under ss 114(3), 114(4), and 115 of the Act — Status: Dismissed (paras [20]-[25]).

Under s 114(3)-(4), where an employer does not consent, an employee may apply to the Authority for leave to raise a personal grievance out of time; the Authority may grant leave only if satisfied that the delay was occasioned by exceptional circumstances and that it is just to do so. The Authority noted firstly that Ms Cameron had made no specific application for leave under s 114(3). The Authority found no evidence of exceptional circumstances to explain the delay, and further found that given the absence of exceptional circumstances and the substantial passage of time since the events in question, it would not be in the interests of justice to allow the claims to proceed. Leave was refused under ss 114(4) and 115.

3. Costs — Status: Reserved (paras [26]-[30]).

The Authority noted that the matter was resolved on the papers and suggested the parties may wish to let costs lie where they fall. However, if costs are sought, Sureplan may lodge a memorandum on costs within 14 days of the determination, with Ms Cameron having 14 days to reply. The Authority indicated it would apply its usual notional daily rate (per PBO Ltd v Da Cruz [2005] 1 ERNZ 808 and Fagotti v Acme & Co Limited [2015] NZEmpC 135) unless particular circumstances warranted adjustment.

The claims were dismissed in their entirety; Ms Cameron's personal grievances were found to have been raised outside the 90-day statutory time limit and leave to raise them out of time was refused.

None ordered. Costs reserved, with a process set out for any costs memoranda to be filed within 14 days of the determination.

DLF, a disabled person receiving individualised funding (IF) for disability support services, claimed to be an employee (or, alternatively, a homeworker) of the Ministry of Social Development (MSD), which administers the IF scheme. The key legal questions were whether the administrative work DLF performs in managing their IF arrangement constitutes employment or homeworker status under the Employment Relations Act 2000. The Authority dismissed both claims, finding that the relationship was one of a funded recipient of disability support services rather than an employment relationship.

Applicant: DLF (disabled individual and individualised funding recipient — name suppressed)
Respondent: The Ministry of Social Development (government agency)

Applicant: Jane Carrigan, advocate
Respondent: Bronwyn Heenan, Tim Bremner and Isabella Peacock-Price, counsel

DLF has received individualised funding (IF) — a form of disability support funding — since 1998, making them one of the earliest participants in the scheme. Under IF, DLF recruits, trains, rosters, supervises and approves hours for their personal caregivers, and manages related administrative tasks including compliance requirements, record maintenance, and host engagement; DLF argued this constituted work performed for MSD. MSD's position was that DLF is merely a recipient of disability support funding who chose IF over other available options, and that the administrative work is a consequence of that choice rather than an employment relationship. A significant event occurred in 2018 when an audit of DLF's IF administration was conducted, resulting in DLF being required to appoint an agent — an experience DLF described as demonstrating MSD's ultimate authority over their arrangements. By consent, the determination addressed only the threshold question of whether DLF is an employee of MSD, with remaining issues (whether DLF is an employer and whether MSD is a controlling third party) reserved for later determination if necessary.

1. Whether DLF is an employee of MSD under s 6 of the Employment Relations Act 2000 — Status: Dismissed (paras [19]-[26]).

The Authority applied the Supreme Court's approach in Raiser Operations BV v E tü [2025] NZSC 162, requiring determination of the real nature of the relationship by reference to the Bryson v Three Foot Six Ltd [2005] NZSC 34 framework, examining: (i) terms of engagement and parties' intentions; (ii) how the relationship operated in practice; and (iii) the relationship assessed as a whole using common law indicia of control, integration, and the fundamental test. The documents — including outcome plans, support assessments, and the flexible support service agreement — contained no reference to an employment relationship between DLF and MSD, and no indication of an intention to create one. While the Authority accepted DLF is not in business on their own account, it found that the administrative duties DLF performs arise as a consequence of receiving IF rather than as obligations owed to MSD as employer, and that looking at the relationship in the round, an employment relationship was not established.

2. Whether DLF is a homeworker under s 5 of the Employment Relations Act 2000 — Status: Dismissed (paras [27]-[32]).

The Authority applied the homeworker test from Lowe v Director-General of Health [2017] NZSC 115, which requires: (i) that the person was engaged, employed or contracted by the other party; (ii) in the course of that party's trade or business; and (iii) to do work in a dwellinghouse. DLF failed to establish two key elements. First, DLF is the recipient of care — not a person contracted to provide caregiving services — so the engagement contemplated by s 5 could not be established. Second, the administrative duties DLF relies upon (including advertising for staff on electronic platforms and public noticeboards, and communicating with the host) are not confined to a dwellinghouse, and it would be artificial to cleave off only the in-home tasks from the broader IF-related work.

3. Non-publication order in respect of DLF's name and identifying details — Status: Established (para [7]).

The Authority exercised its discretion under clause 10, schedule 2 of the Employment Relations Act 2000 to grant a non-publication order over DLF's name and identifying details. The application was unopposed, and the Authority found there was no public interest in publication given DLF's individual circumstances.

4. Whether DLF is an employer and whether MSD is a controlling third party — Status: Not reached (para [4]).

By consent of both parties, the determination addressed only the threshold question of DLF's employee status. These remaining issues were reserved and were not reached because the foundational question of DLF's employment status was resolved against DLF.

Both claims — that DLF is an employee under s 6 and a homeworker under s 5 of the Employment Relations Act 2000 — were dismissed.

None ordered.

A Labour Inspector brought claims against NZ Dream Contracting Limited (NZ Dream), its sole director Gurpreet Singh, and his father Harbant Singh, arising from the employment of two migrant workers — Kulvinder Singh and Jaskaran Singh — who each paid NZD $52,000 in premiums to secure their Accredited Employer Work Visas (AEWVs) and employment with NZ Dream in 2023. The key legal questions were whether those payments constituted unlawful premiums under s 12A of the Wages Protection Act 1983 (WPA), whether the Authority had jurisdiction over payments made in India, and whether Gurpreet and Harbant were personally liable. The claims against NZ Dream and Gurpreet were upheld in full; the personal liability claim against Harbant for penalties and secondary recovery was dismissed on the ground that he was not an officer of NZ Dream.

Applicant: A Labour Inspector (Senior Labour Inspector Stella Gong, employed by MBIE)
Respondent: NZ Dream Contracting Limited (first respondent, horticultural labour supply employer); Gurpreet Singh (second respondent, sole director and shareholder of NZ Dream); Harbant Singh (third respondent, father of Gurpreet Singh)

Applicant: Rebecca Denmead and Rhys Boyd, counsel for the Applicant
Respondent: Arunjeev Singh, counsel for the Respondents

NZ Dream Contracting Limited is a New Zealand-registered horticultural labour supply company that became an Accredited Employer in February 2023, enabling it to sponsor Accredited Employer Work Visas (AEWVs) for overseas workers. In early 2023, Gurpreet Singh (NZ Dream's sole director) arranged for two migrant workers from India — his cousin Kulvinder Singh and Jaskaran Singh — to be employed by NZ Dream, with each required to pay 26 lakh Indian rupees (approximately NZD $52,000) as a condition of obtaining employment and visa support. Payments were made partly in India (to Harbant Singh and his wife's joint bank account, and in cash at Harbant's home) and partly in New Zealand (cash delivered by Jaskaran's brother Maninderpal to Gurpreet). Both complainants made complaints to the Labour Inspectorate in November 2023; the investigation was conducted by Senior Labour Inspectors Williams and then Gong, who gathered extensive documentary, banking, and witness evidence corroborating the premium payments. The respondents denied all claims, asserting that payments were loan repayments or unrelated transactions, but provided no corroborating documentation and did not call a key witness (Satwant Kaur, Gurpreet's mother) despite being asked to do so.

1. Assessment of credibility of witnesses — Status: Established (paras [43]-[54]).

The Authority assessed all witnesses' credibility, preferring the evidence of the Labour Inspector's witnesses (Kulvinder, Jaskaran, Maninderpal, Mandeep, Kalveer, Manjit, and Sarabjit) over that of the respondents' witnesses. The complainants gave detailed, consistent, and corroborated evidence supported by bank records, WhatsApp messages, video footage, and multiple corroborating witnesses, while Gurpreet and Harbant offered only stark denials with no supporting documentation. Gurpreet's credibility was further undermined by his blatant breaches of Accredited Employer obligations and his implausible explanations for documented events. On the balance of probabilities, the Authority found the Labour Inspector's witnesses' accounts more likely to be correct.

2. Whether the Authority has jurisdiction over premium payments made in India — Status: Established (paras [55]-[67]).

The respondents relied on Mehta v Elliot [2003] 1 ERNZ 451, in which the Employment Court held it lacked jurisdiction over premiums paid in India. The Authority followed the reasoning in Arushi v Isher Enterprises Limited & Ors [2024] NZERA 615, which held that post-Mehta legislative changes (including 2004 amendments to Authority and Court Regulations providing extra-territorial reach) and the Supreme Court's decision in Brown v New Zealand Basing Ltd [2018] 1 NZLR 245 had undermined the Mehta position. The Authority found jurisdiction was established because: NZ Dream is a New Zealand company; the requests for premium originated from Gurpreet in New Zealand; the employment agreements were made in New Zealand; the employment was to be wholly performed in New Zealand; and two of Jaskaran's premium payments were made in New Zealand. The Mehta decision was not treated as a bar to recovery.

3. Whether NZ Dream sought and/or received a premium from Kulvinder in breach of s 12A of the WPA — Status: Established (paras [68]-[90]).

Section 12A of the WPA prohibits an employer or person engaged on its behalf from seeking or receiving any premium in respect of employment, whether from the employee or any other person. Applying the two-step test from Zhou v Axis International Trading Company Ltd [2017] NZERA Auckland 353, the payment must be a condition of obtaining/continuing employment and must not benefit the employee other than by securing employment. The Authority found that Kulvinder paid NZD $52,000 (26 lakh) to NZ Dream (via Harbant's joint bank account and cash to Satwant): 10 lakh paid in May 2023 into Harbant's joint account, and 16 lakh cash collected by Harbant and passed to Satwant on 11 June 2023. The timing of payments relative to visa processing, Gurpreet's control over the LIA relationship, and corroborating bank records and WhatsApp communications all established these were premium payments. The respondents' loan repayment alternative narrative was unsupported and rejected.

4. Whether NZ Dream sought and/or received a premium from Jaskaran in breach of s 12A of the WPA — Status: Established (paras [92]-[108]).

Applying the same s 12A WPA test, the Authority found that Jaskaran paid NZD $52,000 (26 lakh) in three tranches: $10,000 cash delivered by Maninderpal to Gurpreet in Te Puke on 18 July 2023; approximately $22,000 (11 lakh) paid in cash by Jaskaran and his father to Harbant at Harbant's home in India on 5 August 2023 (captured on video); and $20,000 cash collected by Gurpreet from Maninderpal's workplace on 7 August 2023. Evidence from Maninderpal, Mandeep, Manjit, Sarabjit, bank statements, voice recordings, and a recorded phone call with Gurpreet all corroborated Jaskaran's account. The respondents' alternative explanations (including Harbant's "property transaction" claim) were rejected as unsupported.

5. Whether Kulvinder and Jaskaran can recover the premiums paid — Status: Established (paras [109]-[112]).

Under s 12A(2) of the WPA, a person who has paid a premium may recover it from the employer as a debt, and a Labour Inspector may bring proceedings on their behalf. The Authority confirmed that the Labour Inspector can recover from NZ Dream the total premiums of NZD $52,000 (Kulvinder) and NZD $52,000 (Jaskaran), totalling NZD $104,000. Recovery from persons involved in non-compliance (Gurpreet) under s 11A(3) of the WPA is available to the extent NZ Dream is unable to pay, per s 11A(4)(b).

6. Whether NZ Dream breached employment standards under s 5 of the Employment Relations Act 2000 — Status: Established (paras [114]-[115]).

Section 5 of the Act defines "employment standards" to include minimum protections such as those under the WPA. NZ Dream's requesting and receiving of premiums from both complainants in breach of s 12A of the WPA constituted a breach of employment standards.

7. Whether Gurpreet Singh was "a person involved in" NZ Dream's breaches of employment standards under s 142W of the Employment Relations Act 2000 — Status: Established (paras [116]-[135]).

Section 142W of the Act provides that an individual is "a person involved in a breach" if they aided, abetted, counselled, procured, induced, were knowingly concerned in, or conspired in the breach. For a company, the individual must be an "officer" (s 142W(2)-(3)), which includes a director. As NZ Dream's sole director, Gurpreet was an officer. The Authority found Gurpreet was the controlling mind of NZ Dream, directly solicited premiums from both complainants, communicated with the LIA on their behalf to control visa processing, and personally received cash premium payments. He aided, abetted, procured and was knowingly concerned in NZ Dream's breaches of s 12A. He also conspired with Harbant, Satwant and Ramanjit to effect those breaches.

8. Whether Harbant Singh was "a person involved in a breach of employment standards" under s 142W of the Employment Relations Act 2000 — Status: Dismissed (paras [121], [140]-[142]).

Because Harbant was not an officer of NZ Dream (as required by s 142W(2)-(3) of the Act), he could not be treated as a "person involved in a breach of employment standards." Despite his active role in receiving and facilitating premium payments, the statutory framework did not extend personal liability under s 142W to non-officers of a corporate employer. The claim that Harbant was a person involved in breach of employment standards was therefore dismissed.

9. Whether Gurpreet, on behalf of NZ Dream, sought or received a premium from the complainants or any other person under s 12A(1) of the WPA — Status: Established (paras [122]-[127]).

As NZ Dream's controlling mind and sole director, Gurpreet was "a person engaged on behalf of the employer" within s 12A(1) of the WPA. The evidence established he arranged for NZ Dream to seek and receive premiums from both Kulvinder and Jaskaran, and personally received cash payments from Maninderpal (as "any other person") on Jaskaran's behalf. He was the driving force behind the premium scheme and controlled the LIA and visa process to extract payments.

10. Whether Gurpreet was "a person involved in non-compliance" with s 12A of the WPA for purposes of s 11A(3)-(5) — Status: Established (paras [128]-[136]).

Section 11A(5) of the WPA links "person involved in non-compliance" to the s 142W test. Because Gurpreet is a director (officer) of NZ Dream and was found to have aided, abetted, procured and been knowingly concerned in NZ Dream's breach of s 12A, he falls within s 11A(5). This means the Labour Inspector can recover from Gurpreet personally the premiums paid by both complainants, to the extent NZ Dream defaults on repayment.

11. Whether Harbant, on behalf of NZ Dream, sought or received a premium from the complainants or any other person under s 12A(1) of the WPA — Status: Established as a factual matter but not giving rise to personal liability (paras [137]-[139]).

The Authority found as fact that Harbant received 10 lakh payments into his joint bank account from Kulvinder, arranged the Bunty loan for the 16 lakh payment, drove Kulvinder to collect the cash, and received 11 lakh in cash from Jaskaran and his father at his home in India. Harbant therefore did, on behalf of NZ Dream, seek and receive premium payments. However, this factual finding did not translate into personal liability under s 11A(3) of the WPA because Harbant was not an officer of NZ Dream (see issue 8 and 12 below).

12. Whether Harbant was "a person involved in non-compliance with s 12A" of the WPA for purposes of s 11A(3)-(5) — Status: Dismissed (paras [140]-[142]).

Because Harbant was not an officer of NZ Dream as required by s 142W(2)-(3) of the Act, he did not fall within s 11A(5) of the WPA. Accordingly, premiums received by him cannot be recovered from him personally under s 11A(3), and no penalty can be imposed on him personally under s 13A(3) of the WPA.

13. Whether NZ Dream defaulting on repayment allows recovery from Gurpreet personally — Status: Established (conditionally) (paras [143], [150]-[152]).

Under s 11A(3) and (4) of the WPA, and s 142Y(1) of the Act, if NZ Dream is unable to repay the premiums, Gurpreet is personally liable to repay any shortfall to the Labour Inspectorate. The Authority ordered Gurpreet to either procure NZ Dream's full repayment of NZD $104,000 within 28 days, or advise the Labour Inspector in writing of NZ Dream's inability to pay (with proof), following which his personal liability to repay any unpaid balance is activated.

14. Whether penalties should be imposed on the respondents for breaches of s 12A of the WPA — Status: Partially established (paras [144]-[145]).

Section 13(1) and (3) of the WPA, and s 13A(3) of the WPA, permit penalties to be imposed on an employer and any person involved in the contravention. The Authority held that penalties should be imposed on NZ Dream and Gurpreet, as the breaches were serious. No jurisdiction to impose penalties on Harbant personally exists, as he was not an officer of NZ Dream within the meaning of s 142W(3) of the Act. The quantum of penalties is reserved for a subsequent determination (the third investigation meeting if necessary).

15. What costs and disbursements should be awarded — Status: Reserved (para [146]).

The Labour Inspector, as the successful party, is entitled to costs and disbursements. However, costs were reserved pending determination of the remaining substantive and penalty claims. No costs order was made in this determination.

The claims were upheld in full against NZ Dream Contracting Limited and Gurpreet Singh (second respondent); the claim for personal liability (secondary recovery and penalties) against Harbant Singh (third respondent) was dismissed on the basis he was not an officer of NZ Dream.

Premium repayment ordered: NZ Dream Contracting Limited is ordered (within 28 days) to repay NZD $52,000 to Kulvinder Singh and NZD $52,000 to Jaskaran Singh (total NZD $104,000) via the Labour Inspectorate.
Personal liability of Gurpreet Singh: Gurpreet Singh is ordered (within 28 days) to either procure NZ Dream's full repayment of NZD $104,000, or advise the Labour Inspector in writing of NZ Dream's inability to pay (with proof); if NZ Dream defaults, Gurpreet must personally repay any outstanding amount under s 142Y(1) of the Act.
Penalties: To be determined in a subsequent (third) investigation meeting. No penalty amount fixed in this determination.
Costs: Reserved sine die pending resolution of remaining substantive and penalty claims.
Reinstatement: No.
Harbant Singh: No remedy or penalty ordered against Harbant personally.

[COSTS ONLY]

This is a costs-only determination following a substantive decision in which Nata Venceslau Dos Santos (employee) succeeded on unjustifiable dismissal and unjustifiable disadvantage claims against Nresh Group Limited (employer). The key questions were whether the employer's Calderbank offer should reverse the usual costs-follow-the-event principle, whether an uplift was warranted due to the former representative's conduct, and how to reflect the mixed outcome. The Authority ordered Nresh to pay $6,000 in costs plus the application filing fee.

Applicant: Nata Venceslau Dos Santos (employee)
Respondent: Nresh Group Limited (employer)

Applicant: Sheridan Climo and Zachary Pentecost, counsel (firm not stated)
Respondent: Mark Donovan, counsel (firm not stated)

In a prior determination dated 9 June 2026 ([2026] NZERA 363), Mr Dos Santos was found to have been unjustifiably dismissed and unjustifiably disadvantaged by Nresh Group Limited, with remedies totalling $30,217.83 gross awarded (comprising $25,000 compensation, $1,440 lost wages, $2,698.15 wage arrears, $891 public holiday pay, $188.68 interest, and a $1,500 penalty). The Authority reserved costs at that time, and the parties were unable to resolve them. On 18 September 2025, before the investigation meeting, Nresh made a Calderbank (without prejudice save as to costs) offer of $30,000 net, which Mr Dos Santos rejected. Mr Dos Santos argued for a $15,000 uplift from the tariff, citing substantial legal costs, success on principal claims, and conduct by Nresh's former representative that allegedly increased costs unnecessarily. Nresh argued that the net value of remedies awarded was less than the rejected settlement offer and that the mixed outcome (Mr Dos Santos succeeded on only 2 of 7 claims) warranted either a costs award in Nresh's favour or no order as to costs.

1. Whether costs should follow the event given the substantially successful party — Status: Established (paras [20]–[22]).

The Authority applied the standard principle that costs follow the event, citing PBO Limited v Da Cruz [2005] 1 ERNZ 808 and Faggotti v Acme & Co Limited [2015] NZEmpC 135. The Authority found Mr Dos Santos was the substantially successful party because the claims on which he succeeded were central to the dispute and produced significant remedies; success is not assessed on a purely numerical basis. However, his failure on several discrete claims (health and safety disadvantage, unpaid travel time, unpaid overtime, unpaid rest breaks, and breach of contract) justified moderation of costs that might otherwise have been awarded to a wholly successful party.

2. Whether the Calderbank offer should reverse the ordinary costs-follow-the-event principle and result in a costs award in Nresh's favour — Status: Dismissed (paras [23]–[25]).

The Authority applied the principle that a Calderbank offer reverses costs liability only where rejection was unreasonable in all the circumstances. At the time of the offer, liability was still disputed and Mr Dos Santos was pursuing claims that were ultimately vindicated. Although the financial outcome was not materially superior to the offer, the non-monetary aspects of the outcome (findings in his favour, establishment of claims) could not be ignored. The Authority was not persuaded that rejection of the offer was so unreasonable as to justify ordering Mr Dos Santos to pay a contribution to Nresh's costs, despite the closeness of the financial comparison.

3. Whether a substantial uplift or indemnity-style costs award was warranted due to the conduct of Nresh's former representative — Status: Dismissed (para [26]).

The Authority considered whether the conduct of Nresh's former representative (correspondence between November 2024 and January 2025) justified an uplift. It declined, finding the conduct pre-dated the Authority application and occurred before Nresh engaged its current representative. The Authority agreed that the complained-of conduct was a matter for the Law Society complaints process and should not influence a costs award; the circumstances did not justify either indemnity costs or a significant uplift from the ordinary tariff approach.

4. Whether the outcome was so mixed as to displace costs following the event entirely — Status: Dismissed (paras [21]–[22]).

Nresh argued that Mr Dos Santos succeeded on only 2 of 7 claims and that the unsuccessful claims significantly increased costs. The Authority, applying Coomer v JA McCallum and Son Ltd [2017] NZEmpC 156, noted that mixed success is still success and that a party need not succeed on every claim to be treated as the successful party. The mixed result was relevant as a moderating factor on quantum rather than a reason to deny costs altogether.

5. Whether the penalty awarded should be included in the comparison with the Calderbank offer — Status: Dismissed (not determinative) (paras [12], [24]).

Nresh submitted that the $1,500 penalty should be excluded from the comparison as it is punitive and discretionary in nature, making the net remedies less than the $30,000 offer. The Authority did not expressly resolve this question as a standalone issue but noted the non-monetary aspects of the outcome were also relevant to the comparison, and ultimately declined to shift costs liability regardless.

6. Quantum of costs to be awarded — Status: Established (paras [27]–[28]).

The Authority applied the daily tariff starting point: $4,500 for day one and $3,500 for day two (total $8,000 for a two-day meeting). Taking into account the mixed outcome and the failure to achieve a materially better result than the Calderbank offer, the Authority reduced the tariff figure to $6,000 as an appropriate reflection of both factors. This is consistent with the principle that costs awards should generally be modest.

The claim for costs was partially upheld: Nresh Group Limited is ordered to pay costs of $6,000 plus the Authority application fee, with the applicant's request for an uplift and Nresh's request for a reversal of costs both dismissed.

Costs: $6,000 payable by Nresh Group Limited to Mr Dos Santos within 14 days.
Authority application fee reimbursement: $71.55.
No other remedies ordered (substantive remedies were addressed in the prior determination [2026] NZERA 363).

Yiping Yin, a chef employed by Sert Holdings Limited (SHL) from March 2019, brought claims for wage arrears, unpaid annual holiday pay, and unpaid alternative holidays following the permanent closure of Caravanserai bar and eatery in early 2025 and the end of his employment on 18 February 2025. Because SHL was placed into liquidation, the central legal questions included whether its sole director, Mehmet Yasar Sert, was personally liable as a person involved in breaches of employment standards, and whether leave should be granted to recover sums from him personally. The Authority upheld the core claims, found Mr Sert personally liable, and ordered him to pay Mr Yin a total of $29,363.93.

Applicant: Yiping Yin (employee/chef)
Respondent: Sert Holdings Limited (In Liquidation) (First Respondent, employer) and Mehmet Yasar Sert (Second Respondent, sole director)

Applicant: Aimee Cai, advocate
Respondent: Mehmet Yasar Sert (self-represented for the Respondents)

Yiping Yin commenced employment with SHL in March 2019 as a chef at Caravanserai, a bar and eatery in Auckland city, with an hourly rate of $26.50 and working hours of 2pm to midnight (an unsigned individual employment agreement dated 2 July 2021 was in evidence). On 19 January 2025, a water pipe burst above Caravanserai causing significant damage; Caravanserai permanently closed on 4 February 2025, and Mr Yin's employment concluded on 18 February 2025. Mr Yin alleged SHL owed him wage arrears for days worked between 19 January and 18 February 2025, outstanding annual holiday pay, and payment for six alternative holidays not provided when he worked on public holidays. Mr Sert argued the water damage was an intervening event frustrating the employment agreement and that SHL could not advance work, and he also disputed the quantum of holiday pay; he further raised an allegation (unsupported by evidence) that Mr Yin had not devoted all working hours to SHL's business. SHL was placed into liquidation by the High Court on 28 May 2026, triggering the question of whether Mr Sert was personally liable under s 142Y of the Employment Relations Act 2000 (the Act).

1. Whether SHL owed Mr Yin wage arrears for days worked between 19 January and 18 February 2025 — Status: Established (paras [14]-[27]).

The Authority calculated Mr Yin's daily entitlement at $251.75 based on his $26.50/hr rate over a 9.5-hour shift. It found Mr Yin worked ten days in that period, generating an entitlement of $2,517.50; SHL had paid $2,311.52 via bank transfer between 25 February and 4 April 2025, leaving an outstanding balance of $205.98. The Authority rejected Mr Sert's frustration argument for this earlier period (prior to permanent closure), accepting that work was performed and wages were due.

2. Whether the doctrine of frustration discharged SHL's obligation to provide work and pay wages from 4 February 2025 onwards — Status: Established (paras [23]-[25], [35], [38]).

Applying the principle from Karelrybflot v Udovenko [1999] NZCA 331 and DQJ v Commissioner of Inland Revenue [2025] NZEmpC 10, the Authority held that frustration requires impossibility of performance and will not be easily invoked. It found that from 4 February 2025 permanent closure made performance impossible, so SHL was discharged from providing work or paying wages for that period; accordingly no wage arrears were owed for the post-4 February period, and there was no breach of the notice clause (cl 25.2) or roster clause (cl 8.1) for that period.

3. Whether SHL breached s 4 of the Wages Protection Act 1983 (WPA) — Status: Established (paras [28]-[29]).

Section 4 of the WPA requires wages to be paid when they become payable. The Authority found Mr Yin worked ten days but SHL did not pay his wages at the time they became due, constituting a breach of s 4 WPA. This breach also constituted a breach of an employment standard under s 5 of the Act.

4. Whether SHL breached clause 8.1 (roster/hours) of the individual employment agreement — Status: Dismissed (para [35]).

The Authority found no breach of cl 8.1 because, from 4 February 2025, the employment contract was frustrated by the impossibility of SHL performing its obligations following permanent closure; SHL was not required to roster Mr Yin during this period.

5. Whether SHL breached clause 11.1 (annual holidays) of the individual employment agreement — Status: Established (paras [37], [46]-[53]).

Clause 11.1 incorporated the Holidays Act 2003 (HA03) obligations. The Authority found SHL breached cl 11.1 by failing to pay Mr Yin outstanding annual holiday pay upon termination, as required by s 56(2) of the HA03 and s 27(2) of the HA03. SHL did not produce holiday and leave records, which prejudiced Mr Yin's ability to quantify his claim precisely (s 83(3) HA03); the Authority relied on the sample payslips provided.

6. Whether SHL breached clause 12.1 (public holidays/alternative holidays) of the individual employment agreement — Status: Established (paras [36], [51]-[53]).

Clause 12.1 incorporated HA03 public holiday obligations. The Authority found that while Mr Yin was paid time and a half for six public holidays worked (per payslips covering 17 June 2024 to 3 February 2025), he was not provided with six alternative holidays as required by s 56(2)(a) of the HA03, constituting a breach of cl 12.1 and s 56 HA03.

7. Whether SHL breached clause 25.2 (notice provisions) of the individual employment agreement — Status: Dismissed (para [38]).

The Authority found no breach of the notice clause because the employment was frustrated; SHL was not required to provide notice on the facts found.

8. Whether penalties should be imposed on Mr Sert for aiding and abetting breaches of the individual employment agreement (cls 11.1 and 12.1) — Status: Dismissed (paras [39]-[42]).

The Authority found that cls 11.1 and 12.1 merely record SHL's statutory obligations under the HA03. Under s 76(1A) of the HA03, an action to recover a penalty against a person involved in a failure to comply with certain HA03 provisions may only be brought by a Labour Inspector, not by an employee. Accordingly, Mr Yin could not personally recover penalties against Mr Sert on this basis.

9. Whether SHL breached s 6 of the Minimum Wage Act 1983 (MWA) — Status: Dismissed (para [43]).

While the issue was raised in Mr Yin's statement of problem and submissions, the Authority found there was insufficient evidence to establish a breach of s 6 MWA.

10. Whether SHL breached s 130(2) of the Act (obligation to provide wages and time record) — Status: Established (paras [44]-[45]).

SHL failed to provide Mr Yin with his wages and time record. The Authority found this was a breach of s 130(2) of the Act.

11. Whether SHL breached s 27(2) and/or s 56 of the HA03 (annual holiday pay and alternative holidays) — Status: Established (paras [46]-[54]).

SHL did not pay Mr Yin outstanding annual leave at the end of the employment relationship (Mr Sert accepted this, disputing only the quantum), constituting a breach of s 27(2) HA03. The Authority found SHL also breached s 56 HA03 by failing to provide six alternative holidays for public holidays worked. Insufficient evidence existed to establish non-payment for other public holidays beyond the six identified.

12. Whether SHL breached employment standards within the meaning of s 5 of the Act — Status: Established (paras [55]-[60]).

The Authority found SHL breached: (a) s 4 WPA; (b) minimum entitlement provisions under the HA03; and (c) ss 81 and 82 HA03. The Authority also rejected Mr Sert's submission that SHL could offset amounts owed to Mr Yin by amounts allegedly owed by Mr Yin for not devoting all working hours to SHL's business, noting SHL is in liquidation (requiring liquidator consent), no evidence existed that this was raised during the employment, and Mr Yin was entitled to his statutory entitlements in any event.

13. Whether Mr Sert was a "person involved" in the breaches of employment standards under s 142W of the Act — Status: Established (paras [61]-[65]).

Under s 142W of the Act, a person is involved in a breach if they aided, abetted, counselled, or procured it, with knowledge of the essential facts establishing the contravention, per A Labour Inspector v Southern Taxis Limited [2021] NZCA 705 at [59]. The Authority found Mr Sert knew Mr Yin had not been paid wages for the ten days worked, knew outstanding annual leave had not been paid (which he conceded), and knew no alternative holidays had been provided; Mr Sert therefore had the requisite knowledge and was a person involved in the employment standard breaches.

14. Whether leave should be granted to Mr Yin to recover wages or other money from Mr Sert personally under s 142Y(2)(b) of the Act — Status: Established (paras [66]-[68]).

Section 142Y allows an employee to seek leave to recover from an individual personally where SHL is unable to pay. The Authority reviewed the first liquidators' report (dated 3 July 2026) and was satisfied SHL could not pay the sums owed. Leave was granted, and Mr Sert was ordered to pay: (a) wage arrears $205.98; (b) outstanding holiday pay $27,647.45; (c) payment for alternative holidays $1,510.50.

15. Whether either party is entitled to costs — Status: Not reached/Reserved (paras [70]-[72]).

Costs were reserved. The parties were encouraged to resolve costs between themselves; if unable to do so, Mr Yin may lodge a costs memorandum within 28 days, with Mr Sert having 14 days to reply. The Authority indicated it would apply the usual daily tariff unless circumstances required adjustment.

The claim was substantially upheld: SHL was found to have breached s 4 WPA, s 27(2) and s 56 HA03, s 130(2) of the Act, and employment standards; Mr Sert was found personally liable as a person involved in those breaches and ordered to pay Mr Yin a total of $29,363.93; claims for wage arrears for the post-4 February period (frustration), breach of notice clause, breach of roster clause, MWA breach, and penalties against Mr Sert were dismissed.

Wage arrears: $205.98 (gross), payable by Mr Sert personally within 28 days.
Outstanding annual holiday pay: $27,647.45 (gross), payable by Mr Sert personally within 28 days.
Payment for alternative holidays: $1,510.50 (gross), payable by Mr Sert personally within 28 days.
Total payable by Mr Sert: $29,363.93 (gross).
Penalties against Mr Sert: None ordered (employee cannot bring penalty claim under HA03 — Labour Inspector only).
Costs: Reserved.
Reinstatement: Not sought or ordered.

Mikayla Zhang (employee) brought personal grievance claims for unjustified disadvantage against Health New Zealand Te Whatu Ora – Waitematā (her employer), arising from alleged exclusion from workplace communications during leave periods in October–November 2025 and the Christmas 2025/2026 period. The key legal questions were whether those grievances were raised within the 90-day statutory timeframe and whether a penalty claim was commenced within the 12-month limit. The Authority found the personal grievances were not raised within time and are outside its jurisdiction, but the penalty claim may proceed.

Applicant: Mikayla Zhang (employee)
Respondent: Health New Zealand Te Whatu Ora – Waitematā (employer)

Applicant: Self-represented (in person)
Respondent: Anthony Russell, counsel for the Respondent

Mikayla Zhang is employed by Health New Zealand Te Whatu Ora – Waitematā. A prior Authority determination dated 11 March 2026 ([2026] NZERA 152) ruled that Ms Zhang could not rely on events prior to March 2024 other than as context, as those matters had been settled. Ms Zhang was directed to file a second amended statement of problem, which she did on 30 April 2026, raising three new matters: exclusion during annual leave in October 2025 (matter F), a hostile management response in November 2025 (matter G), and continuing exclusion over Christmas leave into 2026 (matter H). Health NZ raised jurisdictional objections, arguing these grievances were filed outside the 90-day notification period and that it had not consented to late raising. Ms Zhang argued that a 3–4 November 2025 email exchange constituted timely raising of grievances F and G, and that her ongoing exclusion amounted to a continuing course of conduct not requiring fresh notification. Ms Zhang also clarified her penalty claim was limited to events in October–December 2025 and January 2026.

1. Whether personal grievances for unjustified disadvantage (matters F and G: October and November 2025) were raised within the 90-day statutory timeframe under s 114 of the Employment Relations Act 2000 — Status: Dismissed (paras [11]-[25]).

Under s 114, a personal grievance must be raised within 90 days of the action occurring or coming to the employee's notice, by making the employer sufficiently aware that the employee alleges a grievance they want addressed (Creedy v Commissioner of Police; Chief Executive of Manukau Institute of Technology v Zivaljevic). The Authority reviewed the 3–4 November 2025 email exchange on which Ms Zhang relied and found that, objectively read, the emails raised operational queries that were answered during the exchange and did not convey a complaint of the type amounting to a personal grievance — Ms Zhang did not reference a term of employment, did not express devastation or concern about conduct, and appeared satisfied with responses. The 30 April 2026 second amended statement of problem, being more than 90 days after 4 November 2025 and not received by HNZ before then, was out of time; HNZ did not consent to late raising. Matters F and G are outside the Authority's jurisdiction.

2. Whether personal grievance for matter H (continuing exclusion — Christmas leave and into 2026) was raised within the 90-day statutory timeframe — Status: Dismissed (paras [26]-[30]).

Ms Zhang argued that actions taken by HNZ during her Christmas 2025/2026 leave without her knowledge or involvement, discovered in April 2026, formed part of a continuing course of conduct. The Authority accepted that the crystallisation point of Ms Zhang's dissatisfaction was 16 June 2026, when HNZ's manager provided an explanation Ms Zhang considered deficient, as confirmed by her July 2026 affidavit. However, no personal grievance in relation to this matter had been raised within 90 days of any identifiable event, and the second amended statement of problem was filed before HNZ provided the 16 June email, meaning no personal grievance arising from the Christmas leave period was properly before the Authority. Notably, Ms Zhang had not advanced a claim that exceptional circumstances occasioned any late raising.

3. Whether the law on continuing course of conduct permits the Authority to consider earlier incidents outside the 90-day period — Status: Not reached (para [7]).

The Authority noted the applicable principle from Premier Events Group Ltd v Beattie (No 3) [2012] NZEmpC 79 that in disadvantage grievances, events outside the 90-day period may be considered as part of a course of conduct connected to events within the period. However, because the Authority found that no qualifying personal grievance was raised within time at all, this principle had no operative application in this case.

4. Whether a penalty claim under s 135 of the Employment Relations Act 2000 was commenced within the 12-month limitation period — Status: Established (paras [31]-[32]).

Section 135(5) of the Act imposes a 12-month limitation period for penalty claims. Ms Zhang clarified her penalty claim is limited to events in October–December 2025 and January 2026, and conceded she cannot bring a penalty claim for early 2025 events. HNZ argued the substantive threshold of serious, sustained, and deliberate breach of good faith could not be met, but the Authority noted that determination of those facts awaits investigation. The penalty claim for October–December 2025/January 2026 events is within time and before the Authority for investigation.

5. Whether either party is entitled to an award of costs — Status: Conditional (para [33]).

Costs were reserved. No determination on costs was made at this stage.

The claims for personal grievance relating to matters F, G, and H were dismissed as out of time and outside the Authority's jurisdiction; the penalty claim for October–December 2025/January 2026 was found to be within time and will proceed to investigation; costs were reserved.

None ordered at this stage. The penalty claim proceeds to further investigation. Costs are reserved.

Kevin Whelan, a long-serving IT manager of 23 years at Lindisfarne College, was dismissed in September 2024 following a disciplinary process arising from his showing CCTV accident footage to students and making an inappropriate remark about the accident victim. The key legal questions were whether his dismissal and suspension were unjustified, and whether the college's failure to honour his collective agreement notice entitlements amounted to an unjustified disadvantage. The dismissal and suspension were found justified, but the failure to comply with notice provisions under the collective agreement was upheld as an unjustified disadvantage, resulting in awards of lost wages and compensation.

Applicant: Kevin Whelan (employee, IT manager)
Respondent: The Board of Trustees of Lindisfarne College (employer)

Applicant: David Oliver, counsel for the Applicant
Respondent: Gretchen Stone, counsel for the Respondent

Mr Whelan worked as IT manager at Lindisfarne College for approximately 23 years. In August 2024, he showed CCTV footage of a car-bicycle accident on school grounds to two students involved in the incident, and made a remark to the effect of "you should have backed up and finished him off," which he described as a clumsy joke. Following a complaint from the student and his parents, the Rector Mr Hakeney initiated a disciplinary process, suspending Mr Whelan on pay and ultimately dismissing him on 4 September 2024 for serious misconduct. Mr Whelan was paid four weeks' wages in lieu of notice rather than being permitted to work out his notice as required under the collective agreement, resulting in a short-payment of approximately $717.92 gross. Mr Whelan raised personal grievances for unjustified dismissal, unjustified disadvantage arising from suspension, and unjustified disadvantage arising from the failure to allow him to work out his contractual notice period.

1. Whether Mr Whelan was unjustifiably dismissed — Status: Dismissed (paras [26]-[40]).

The test of justification under s 103A of the Employment Relations Act 2000 requires consideration of whether the employer sufficiently investigated, raised concerns, gave the employee a reasonable opportunity to respond, and genuinely considered explanations before making its decision. The Authority found all procedural requirements were met: allegations were sufficiently investigated, clearly stated and understood, Mr Whelan was given multiple opportunities to respond in writing and in person, and the college genuinely considered his explanations. On the substantive question, the Authority found — by a fine margin — that dismissal for the inappropriate remark (which could be seen as condoning violence toward a young accident victim) was within the range of outcomes reasonably available to a fair and reasonable employer, particularly given the college's special character, its values, and the vulnerability of the student audience.

2. Whether the college's failure to interview additional witnesses (groundskeeper and second student) rendered the dismissal unjustified — Status: Dismissed (paras [36]-[37]).

Mr Whelan argued that the failure to interview the groundskeeper and the other student present undermined the adequacy of the investigation. The Authority found this was not required as neither person was a witness to the disputed conduct in the office, the groundskeeper was not involved, and the factual matters in dispute were narrow and sufficiently understood between the parties without additional witnesses.

3. Whether the dismissal was improperly based on Mr Whelan's showing of CCTV footage without policy authority — Status: Dismissed (paras [38]).

Mr Whelan submitted that because there was no CCTV policy prohibiting him from showing footage to students, the showing of footage could not be valid grounds for dismissal. The Authority accepted Mr Hakeney's evidence that the primary reason for dismissal was the inappropriate remark, not the showing of the footage per se, and accordingly rejected this submission.

4. Whether there was sufficient evidence that the student complainant suffered genuine distress — Status: Established (paras [39]).

Mr Whelan challenged whether the student's distress was sufficiently evidenced. The Authority accepted the student's written statement as credible and found it conveyed real distress experienced by the student as a result of Mr Whelan's comment.

5. Whether Mr Whelan was denied access to relevant video footage, rendering the process unfair — Status: Dismissed (paras [40]).

Mr Whelan argued he was not given access to relevant footage. The Authority found he had access to the CCTV footage at relevant times and was given the opportunity to view the student's cell phone recording of his comment but declined. Further, no significant factual dispute existed that footage would have resolved.

6. Whether the suspension constituted an unjustified disadvantage — Status: Dismissed (paras [41]-[47]).

Under s 103 of the Act and clause 8.4.1(d) of the collective agreement, suspension on pay was permitted where the matter was sufficiently serious. The Authority found the letter of 23 August 2024 adequately set out the conduct of concern, Mr Whelan was given notice of the proposed suspension and two opportunities to respond before the decision was made, and the college was not required to actively prompt him for a response when none was forthcoming. Suspension was in accordance with the collective agreement and did not amount to an unjustified disadvantage.

7. Whether the failure to allow Mr Whelan to work out his notice period (or pay him the correct entitlement) constituted an unjustified disadvantage — Status: Established (paras [48]-[56]).

The collective agreement provided that on dismissal for serious misconduct, an employee was entitled either to instant dismissal or to work out their notice period, with any alternative requiring agreement. The college instead paid four weeks in lieu without proper authority and without offering Mr Whelan the opportunity to agree to an alternative, resulting in a short-payment of $717.92. The Authority found the college failed to comply with its collective agreement obligations, could not explain the non-compliance, and this amounted to an unjustifiable action causing Mr Whelan an unjustified disadvantage in terms of both lost wages and the inability to work out his notice.

8. Whether remedies should be reduced for Mr Whelan's contributory conduct under s 124 of the Act — Status: Dismissed (paras [60]).

The Authority considered contribution under s 124 in respect of the unjustified disadvantage finding (notice). It found Mr Whelan played no part in the college's failure to comply with its collective agreement notice obligations and made no reduction to the remedy.

9. Whether the Authority should make recommendations under s 123(1)(ca) for establishment of a CCTV surveillance policy — Status: Dismissed (paras [57]).

Mr Whelan sought a recommendation that the college establish a CCTV policy. The Authority declined to make this recommendation because no particular workplace conduct or practice was a significant factor in the personal grievance that was made out. The Authority also noted a CCTV policy had already been implemented by the college following the events.

10. Costs — Status: Reserved (paras [63]-[65]).

The Authority reserved costs and encouraged the parties to resolve costs between themselves. If unresolved, the applicant may lodge a memorandum on costs within 28 days, with the respondent having 14 days to reply. The Authority indicated it would determine costs having regard to factors that may move an award upwards or downwards.

The claim was partially upheld: the unjustified dismissal and unjustified disadvantage (suspension) claims were dismissed, but the unjustified disadvantage claim relating to the failure to comply with collective agreement notice provisions was established and remedies were ordered accordingly.

Lost wages (short-paid notice): $717.92 gross, ordered under s 132 of the Act.
Compensation for hurt and humiliation (s 123(1)(c)(i)): $12,000 (without deduction), in respect of the unjustified disadvantage (notice) claim only.
No reduction for contribution (s 124).
Reinstatement: Not ordered.
Recommendation for CCTV policy: Declined.
Costs: Reserved; parties encouraged to resolve between themselves; process for lodging memoranda set out.
All sums payable within 28 days of the determination date.

A Labour Inspector brought enforcement proceedings against Indo Kiwi Horticulture Limited (a labour hire company) and its former sole director and shareholder, Boota Singh Dhillon, in respect of minimum wage arrears, Holidays Act arrears, and unlawful premium payments affecting four Indian migrant worker complainants. The key legal questions were whether the respondents had breached the Minimum Wage Act 1983, Holidays Act 2003, and Wages Protection Act 1983, whether Mr Dhillon was a "person involved" in those breaches, and the appropriate level of penalties. The Authority found all breaches established, ordered total arrears/premium repayments of approximately $152,294.91 plus interest, and imposed penalties of $176,000 on Indo Kiwi and $88,000 on Mr Dhillon, with 50% of each penalty directed to the complainants.

Applicant: A Labour Inspector (Ministry of Business, Innovation and Employment)
Respondent: Indo Kiwi Horticulture Limited (First Respondent, employer/labour hire company); Boota Singh Dhillon (Second Respondent, former sole director and shareholder of Indo Kiwi)

Applicant: John Hilario, advocate for the Applicant
Respondent: No appearance

Indo Kiwi Horticulture Limited is a labour hire company supplying workers (primarily) to kiwifruit orchards in the Bay of Plenty, and formerly held Immigration New Zealand accreditation to employ migrant workers. Boota Singh Dhillon was the sole director and shareholder of Indo Kiwi from 4 August 2021 until 31 October 2024, the period during which all alleged breaches occurred. Four Indian national complainants came to New Zealand to work for Indo Kiwi on employer-specific work visas; they allege they were underpaid, denied holiday entitlements, and coerced into making substantial premium payments to Mr Dhillon (partly via Indian bank accounts belonging to his family members) as a condition of their employment. The Labour Inspector received complaints from July 2024 onwards, issued a notice requiring employment records (none were provided), and conducted an investigation; the respondents were served with all relevant documents and were aware of the investigation meeting but neither attended nor engaged with proceedings. In the absence of any employment records, the Authority accepted the complainants' unchallenged evidence under s 132(2) of the Employment Relations Act 2000 as proven, and the Labour Inspector's arrears calculations were accepted as accurate.

1. Whether Indo Kiwi owed minimum wage arrears under s 6 of the Minimum Wage Act 1983 to the four complainants — Status: Established.

The MWA requires employees to receive not less than the prescribed minimum wage for all work performed, with arrears recoverable by a Labour Inspector on behalf of employees. Because no employment records were produced, s 132(2) of the Act was engaged, allowing the complainants' evidence as to wages paid and hours worked to be accepted as proven. The Authority accepted the Labour Inspector's detailed calculations: Complainant A $7,842.85; Complainant B $30,970.47; Complainant C $7,195.90; Complainant D $19,166.81 (total minimum wage arrears $65,176.03).

2. Whether Indo Kiwi owed Holidays Act 2003 arrears (annual leave under s 23; annual holidays under ss 24–25; public holiday pay under s 50; alternative holiday pay under ss 56 and 60) — Status: Established.

The Authority applied s 132(2) of the Act in the absence of employment records, accepting the complainants' unchallenged evidence. Annual leave arrears under s 23 were found for Complainants A ($3,334.55), B ($5,528.48), and C ($2,041.77); annual holiday arrears under ss 24–25 for Complainant D ($9,239.49); public holiday arrears under s 50 for Complainants A ($202.50), B ($253.93), and C ($202.50); and further public holiday arrears under ss 56 and 60 for Complainants A ($263.81), B ($340.42), and C ($274.43). Total Holidays Act arrears: $21,682.40.

3. Whether Indo Kiwi unlawfully sought or received premium payments from three complainants in breach of s 12A of the Wages Protection Act 1983 — Status: Established.

Section 12A(1) WPA prohibits any employer or person acting on an employer's behalf from seeking or receiving any premium in respect of a person's employment. The Authority relied on the complainants' unchallenged evidence, WhatsApp messages confirming instalment payments, and bank transfer records showing payments to Indian bank accounts belonging to Mr Dhillon's family members. The Authority accepted that payments to offshore accounts of Mr Dhillon's family members were for his ultimate benefit, and, following Arushi v Isher Enterprises and the comments in Labour Inspector v NZ Fusion International Limited, held that the extraterritoriality concerns from Mehta v Elliott did not prevent recovery of offshore premiums. Premiums found: Complainant A $12,000; Complainant B $29,437; Complainant C $24,000 (total $65,437).

4. Whether Mr Dhillon was a "person involved" in each of the above employment standards breaches under ss 142W and 142Y of the Act — Status: Established.

Under s 142W(1), a person is "involved" if they aided, abetted, counselled, or procured a breach, or were knowingly concerned in it. The Authority found that Mr Dhillon, as sole director and controlling mind of Indo Kiwi throughout the relevant period, had actual knowledge of all essential facts underpinning the breaches (citing Labour Inspector v Southern Taxis). He was therefore personally liable under s 142X for penalties and under s 142Y for arrears and premiums to the extent Indo Kiwi defaults.

5. Whether penalties should be imposed on Indo Kiwi for its breaches of the WPA, MWA, and Holidays Act, and at what level — Status: Established.

The Authority applied the four-step Preet methodology and the s 133A statutory considerations, with reference to Labour Inspector v Daleson Investment, Labour Inspector v Prabh Limited, Labour Inspector v Samra Holdings, and Labour Inspector v Shalini Limited (upheld on appeal). The Authority identified 14 separate breaches (three WPA, four MWA, four annual holiday pay, three public holiday pay) with a combined maximum penalty of $280,000. Applying provisional starting points of 80% of maximum for WPA and MWA breaches and 60% for Holidays Act breaches, with a 10% discount for Indo Kiwi no longer trading (but no other mitigation), and proportionality, the total penalty imposed on Indo Kiwi was $176,000.

6. Whether penalties should be imposed on Mr Dhillon as a person involved in the breaches, and at what level — Status: Established.

Applying the same framework, the maximum penalty available against Mr Dhillon was $140,000 (at $10,000 per breach for a natural person). Applying the same percentage reductions and a 10% discount reflecting that Indo Kiwi no longer trades and Mr Dhillon is no longer a director, and proportionality, the total penalty imposed on Mr Dhillon was $88,000.

6. Whether part of the penalties should be directed to the complainants under s 136(2) of the Act — Status: Established.

The Authority exercised its discretion under s 136(2) to direct 50% of each penalty to the complainants. Of Indo Kiwi's $176,000 penalty, $88,000 goes to the Crown and $88,000 to the four complainants in equal shares ($22,000 each). Of Mr Dhillon's $88,000 penalty, $44,000 goes to the Crown and $44,000 to the four complainants in equal shares ($11,000 each).

7. Whether interest should be awarded on the found arrears of wages and holiday pay — Status: Established.

The Authority awarded interest on wage and holiday pay arrears running from 8 August 2025 (the day after the Labour Inspector's final report was provided to the respondents), to be calculated using the Ministry of Justice Civil Debt Interest Calculator. No interest was sought or awarded on premium payments. Interest falls only on Indo Kiwi, not Mr Dhillon, as "other money payable" under s 142Y does not include interest ordered by the Authority (citing Labour Inspector v Fernando).

8. Whether Indo Kiwi's failure to produce employment records breached its record-keeping obligations (ss 135 and 142X of the Act) — Status: Partially established (noted as a relevant factor and breach basis but addressed as a statutory consideration going to penalty rather than as a separately quantified penalty head; the breach is identified as part of the overall breach framework).

The failure to keep and maintain proper wage, time, holiday, and leave records was identified as a statutory breach that impeded the Labour Inspectorate's regulatory function and caused additional and unnecessary work for the Labour Inspectorate. This was treated as an aggravating factor in the penalty assessment rather than generating a discrete additional penalty.

9. Whether leave should be granted to recover found arrears, premiums, and debts from Mr Dhillon personally under s 142Y of the Act — Status: Established.

Leave was granted for the Labour Inspector to recover the arrears of wages and holiday pay and the unlawful premium debt from Mr Dhillon personally, to the extent that Indo Kiwi defaults on paying any of the amounts ordered. The Authority noted that under s 142Y, liability for interest does not extend to Mr Dhillon.

10. Whether a costs order should be made — Status: Not reached (reserved).

The Authority reserved costs and encouraged the parties to resolve the issue between themselves. A timetable was set for memoranda if agreement is not reached.

The claims were upheld in full: all arrears, premium repayments, and penalty claims were established against both respondents, and leave was granted to recover from Mr Dhillon personally upon Indo Kiwi's default; costs were reserved.

Arrears/Premiums (Indo Kiwi, for benefit of four complainants):
- Minimum wage arrears: $65,176.03
- Annual holiday pay arrears (s 23 Holidays Act): $10,904.80
- Annual holiday arrears (ss 24–25 Holidays Act): $9,239.49
- Public holiday pay arrears (s 50 Holidays Act): $658.93
- Public holiday pay arrears (ss 56 & 60 Holidays Act): $878.66
- Unlawful premium repayments: $65,437.00
- Total arrears and premiums: $152,294.91
- Interest on wage and holiday arrears from 8 August 2025 (amount to be calculated via MOJ Civil Debt Interest Calculator)

Penalties:
- Indo Kiwi: $176,000.00 (50% = $88,000 to Crown; 50% = $88,000 to four complainants equally at $22,000 each)
- Boota Singh Dhillon: $88,000.00 (50% = $44,000 to Crown; 50% = $44,000 to four complainants equally at $11,000 each)
- All penalty amounts payable within 28 days

Personal liability:
- Leave granted for Labour Inspector to recover arrears, premiums, and debt from Mr Dhillon personally to the extent Indo Kiwi defaults (excluding interest)

Costs: Reserved

William David Manning, a former Senior Designer at the Ministry of Business, Innovation and Employment (MBIE), claimed unjustifiable dismissal and unjustifiable disadvantage after MBIE terminated his employment on 14 March 2025, primarily on the ground that he had wiped his MBIE laptop of all data. The Authority found the dismissal was unjustified because MBIE lacked sufficient evidential basis to conclude that official records had been destroyed, but determined that Manning's own conduct — including deliberately wiping the laptop and attempting to flee New Zealand on a one-way ticket without informing MBIE — constituted 100% contributory conduct, resulting in no remedies being awarded.

Applicant: William David Manning (employee, former Senior Designer)
Respondent: Ministry of Business, Innovation and Employment (MBIE) (employer)

Applicant: John Goddard, Counsel
Respondent: Peter Chemis and Nikita Raman, Counsel

Manning was employed by MBIE from June 2018 until 14 March 2025 as a Senior Designer. Concerns arose in late 2023 about his involvement with a side business called Ameribuild, including possible use of MBIE resources and providing inaccurate declarations of interest. In March 2024, facing an imminent MBIE disciplinary meeting, angry Ameribuild customers, and a police investigation, Manning flew to Auckland where he and his partner purchased one-way tickets to the United States and Manning wiped his MBIE laptop to factory settings; he was arrested on 11 March 2024 before leaving New Zealand. MBIE did not learn the laptop had been wiped until August 2024, when Police returned it; Manning had not disclosed the wiping at any point during the intervening months despite several communications with MBIE. MBIE suspended Manning on full pay from March 2024 and, following a meeting in January 2025, issued a preliminary dismissal decision in February 2025 and terminated Manning's employment on 14 March 2025, on the single ground of destroying MBIE official records. Manning denied using the laptop for Ameribuild work, denied any MBIE records were destroyed (arguing data was cloud-stored), and disputed the fairness and substantive justification for both the suspension and dismissal; during the investigation meeting, his counsel withdrew the penalty claims against a named MBIE manager and MBIE itself, and conceded that a privacy breach claim was out of time.

1. Application for non-publication order — Status: Dismissed (paras dealing with non-publication at the opening of the determination).

The Authority applied the open justice principles affirmed in MW v Spiga Limited [2024] NZEmpC 147 and Erceg v Erceg [2016] NZSC 135, which require a party seeking a departure from open justice to demonstrate specific adverse consequences sufficient to justify an exception. Manning advanced two grounds: damage to his career as a designer, and a risk that Authority findings of dishonesty could undermine his right to a fair and public criminal hearing. The Authority rejected the first ground as insufficient — career damage is a natural consequence of litigation common to virtually all parties and would justify non-publication in almost every case. The second ground was also rejected because s 50 of the Evidence Act 2006 renders civil judgments inadmissible in criminal proceedings to prove facts in issue, so it was difficult to see how any findings could prejudice a fair criminal hearing. The non-publication application was declined.

2. Whether the dismissal of Manning was unjustified under the s 103A test — Status: Established (conclusions section of the determination).

The Authority applied the s 103A statutory test of whether MBIE's decision to dismiss was one that a fair and reasonable employer could have made in all the circumstances. MBIE's dismissal letter confirmed it relied solely on the allegation that Manning had destroyed MBIE official records. However, MBIE's own Head of Integrity conceded there was no way of knowing whether any MBIE data was actually lost, and the Authority found it highly unlikely that MBIE work-related records were destroyed given cloud storage of most data. The Authority concluded there was no proper evidential basis from which a fair and reasonable employer could have concluded that official records were destroyed, and accordingly the dismissal was unjustified.

3. Whether Manning was unjustifiably disadvantaged by the length of his suspension — Status: Dismissed (suspension section of the determination).

The Authority acknowledged the suspension was lengthy, but noted it was on full pay and continued partly because Manning himself requested MBIE pause the employment process until criminal proceedings resolved. Importantly, Manning had not been forthcoming about wiping his laptop for many months, which contributed to the prolonged situation. The Authority found the disadvantage claim arising from the suspension was not made out.

4. Whether Manning was unjustifiably disadvantaged by MBIE's handling of other allegations (Ameribuild-related allegations including use of MBIE resources, use of colleagues' names, and misleading declarations) — Status: Dismissed (disadvantage claims section).

Manning argued MBIE failed to address the Ameribuild-related allegations fairly and reasonably. The Authority found Manning was not dismissed for any of these allegations; investigation into them was overtaken by the dismissal event. Manning was unable to demonstrate any actual disadvantage suffered in respect of these allegations. The Authority also noted Manning's own conduct in wiping the laptop prevented MBIE from completing the investigation it had wished to undertake.

5. Whether Manning was unjustifiably disadvantaged by MBIE treating his workplace complaints differently from those of other employees — Status: Dismissed (disadvantage claims section).

Manning alleged his complaints were handled differently to those of other MBIE employees. The Authority found, on the evidence, that there was no material difference in treatment and no evidence that any MBIE action unjustifiably disadvantaged Manning in this respect.

6. Whether statutory penalties against MBIE (and a named MBIE manager) should be awarded — Status: Not reached (background/procedural section).

Manning's counsel advised during the investigation meeting that the penalty claims against the named MBIE manager and against MBIE itself were no longer being pursued. Accordingly, this issue was withdrawn and not determined.

7. Whether the privacy breach claim (breach of information privacy principles) was properly before the Authority — Status: Not reached (procedural section).

Manning's counsel advised the privacy breach claim was outside the prescribed time limit and would not be argued. The claim was therefore removed from the proceedings and not determined.

8. The extent of Manning's contributory conduct under s 124 of the Employment Relations Act 2000 and whether remedies should be reduced — Status: Established at 100% (conclusions/remedies section).

Under s 124 of the Act, the Authority must consider the extent to which the employee's actions contributed to the situation giving rise to the personal grievance, and reduce remedies accordingly, including potentially to nil. The Authority applied the Court of Appeal's guidance in Salt v Fell and Ark Aviation Limited v Newton [2002] 2 NZLR 145, which confirmed that seriously egregious conduct — including conduct discovered after dismissal — can reduce remedies to nil where it amounts to a serious abuse of the trust and confidence underpinning the employment relationship. The Authority found Manning's conduct was of exactly that character: he deliberately wiped the laptop to deny MBIE access to it, arranged to permanently leave New Zealand on one-way tickets without informing MBIE, and failed to disclose the wiping for months. The Authority did not accept Manning's security justification for wiping the laptop, finding his explanation lacked credibility in context. The Authority assessed contribution at 100%, resulting in no remedies being awarded. The Authority also noted that equity and good conscience independently supported this outcome, and that it was arguable Manning had effectively ended the employment relationship himself in March 2024 before the dismissal.

9. Costs — Status: Reserved (costs section).

The Authority reserved costs and encouraged the parties to resolve costs between themselves. The Authority's preliminary view was that costs may lie where they fall. A mechanism for filing cost memoranda within 28 days was provided if the parties cannot agree.

The claim of unjustifiable dismissal was upheld in principle but all disadvantage claims were dismissed, and no remedies were awarded due to 100% contributory conduct by Manning; costs are reserved.

None ordered. Manning's contribution to the situation giving rise to his dismissal was assessed at 100% under s 124 of the Act, resulting in a nil award of remedies for the established unjustifiable dismissal. Costs are reserved; the Authority's preliminary view is that costs may lie where they fall, with memoranda to be filed within 28 days if the parties cannot agree.

Eun Joo Kim, a kitchen worker at Big Beat Coffee & Café on Dominion Road, Auckland, brought a personal grievance claim against her new employer Sage & Umber Limited and its sole director Pei Su, alleging constructive dismissal following a loud public confrontation by Mr Su on 8 September 2024. The Authority found that Mr Su's conduct — publicly questioning Ms Kim's skills and trustworthiness and telling her she could leave if she couldn't do the job — amounted to repudiatory conduct breaching the duty of trust and confidence, constituting an unjustified constructive dismissal. The claim was upheld in full, with lost wages, compensation, arrears, holiday pay, interest, and a penalty awarded.

Applicant: Eun Joo Kim (employee)
Respondent: Sage & Umber Limited (First Respondent, employer) and Pei Su (Second Respondent, sole director)

Applicant: Seungmin Kang, counsel for the applicant
Respondent: Pei Su for the respondents (self-represented)

Ms Kim began working as a kitchen worker/chef at Big Beat Coffee & Café in April 2024. In mid-2024 Sage & Umber Limited, a company owned by neighbouring noodle shop operator Pei Su, purchased the café business and Ms Kim was offered continuing employment at 30 hours per week at $23.15 per hour (minimum wage). The café reopened under new ownership around 7 September 2024; a draft employment agreement was provided but not signed before Ms Kim stopped working. On 8 September 2024, Mr Su confronted Ms Kim in a public area of the café in a loud voice, questioning whether she could do anything, saying he could not trust her, blaming her for low revenue, and telling her if she could not do the job she could go; Ms Kim left immediately. Mr Su later sent a text apology offering her return to work or a two-week notice period, but Ms Kim did not respond and a personal grievance was raised by her lawyer on 12 September 2024. Ms Kim was never paid any wages by Sage & Umber; the respondents filed no witness statements and ultimately no submissions, though Mr Su attended the investigation meeting.

1. Whether Ms Kim was constructively dismissed by Sage & Umber Limited — Status: Established (paras [56]-[64]).

The Authority applied the three-limb test from Auckland Shop Employees Union v Woolworths (NZ) Limited [1985] 2 NZLR 372 (CA), with particular reference to the third limb: a breach of duty by the employer leading the employee to resign. The Authority also applied the requirement from Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] NZLR 415 (CA) that the breach be sufficiently serious that resignation was recognisably foreseeable. Mr Su's loud public confrontation — questioning Ms Kim's competence and trustworthiness, blaming her for low revenue, and telling her to leave if she could not do the job — was found to be dismissive and repudiatory conduct breaching the implied duty of trust and confidence. The Authority concluded this conduct directly caused Ms Kim to leave and that her resignation was recognisably foreseeable; the belated text apology without direct personal contact did not cure the breach.

2. Whether the constructive dismissal was unjustified — Status: Established (paras [65]-[67]).

The Authority assessed whether Mr Su, as Sage & Umber's representative, acted as a fair and reasonable employer. Rather than addressing performance concerns privately, Mr Su used a loud voice in a public area, attacking Ms Kim's skills and trustworthiness within earshot of other staff. The Authority found this conduct was not what a fair and reasonable employer would do, making the dismissal unjustifiable.

3. Whether a potential actual dismissal occurred — Status: Not reached (para [56]).

The Authority noted Mr Su's concluding comment ("if you can't do the job, you should go") could potentially constitute an actual dismissal, but concluded the matter was better resolved under the constructive dismissal head and did not separately determine the actual dismissal issue.

4. Whether Ms Kim is entitled to lost wages as a remedy — Status: Established (paras [69]-[74]).

Lost wages were calculated based on 30 hours per week at $23.15 per hour ($694.50 per week) for 13 weeks (three months), totalling $9,028.50 gross, pursuant to s 123(1)(b) and s 128(2) of the Employment Relations Act 2000. The Authority accepted Ms Kim was not required to mitigate by accepting the reinstatement offer given the breakdown in trust and confidence. Actual earnings of $324.10 gross from other work during the period were deducted, leaving $8,704.40 gross. WINZ payments were not deducted. No contribution reduction was applied.

5. Whether Ms Kim is entitled to compensation for humiliation, loss of dignity and injury to feelings under s 123(1)(c)(i) — Status: Established (paras [75]-[80]).

The Authority considered the nature of the dismissal and its impact on Ms Kim, including immediate distress witnessed by her husband, lasting depression and anxiety, physical symptoms (loss of appetite, nightmares, hair-pulling), impact on her marriage and parenting, and medical evidence from 12 September 2024 confirming an acute anxiety and depression episode attributed to a traumatic workplace experience. The Authority awarded $18,000 (against $30,000 sought), reflecting the lasting humiliation and distress caused by Mr Su's public conduct.

6. Whether Ms Kim contributed to her dismissal such that remedies should be reduced — Status: Dismissed (paras [81]-[82]).

The Authority considered whether Ms Kim had misrepresented her cooking skills or was otherwise blameworthy. It found that Sage & Umber had not made sufficient enquiries about Ms Kim's actual abilities before assigning her effectively a head chef role, and that no misrepresentation was established. Ms Kim was not blameworthy and no contribution deduction was warranted.

7. Whether Sage & Umber owes Ms Kim arrears of wages and holiday pay, and whether interest should be awarded — Status: Established (paras [83]-[86]).

Ms Kim was not paid any wages. The Authority used s 132 of the Act to assist in determining the quantum, noting that Sage & Umber's failure to keep or produce wages and time records prejudiced Ms Kim's ability to quantify her claim. The Authority accepted that Ms Kim worked a full day on both 7 and 8 September 2024. At $23.15 per hour, gross wages of $370.40 were found owing, with 8% holiday pay of $29.63, totalling $400.03. Interest was awarded on the total arrears from 12 September 2024 until payment under Schedule 2, clause 11 of the Act.

8. Whether Sage & Umber breached s 4 of the Wages Protection Act 1983 and whether a penalty should be imposed — Status: Established (paras [87]-[92]).

Section 4 of the Wages Protection Act 1983 requires payment of the full amount of wages when due. The Authority found this was breached as no wages were paid at all. A global penalty of $500 was imposed for all three breaches (see issues 8, 9, 10 below), taking into account the relatively small arrears amount, the statutory minimum entitlement nature of the obligations, and the deliberate decision not to pay once litigation commenced. Half ($250) was allocated to Ms Kim and half to the Crown under s 136 of the Act. The Authority cited Borsboom v Preet PVT Limited [2016] NZEmpC 143, Nicholson v Ford [2018] NZEmpC 132, and Labour Inspector v Daleson Investment Limited [2019] NZEmpC 12 on penalty factors, and applied s 133A of the Act.

9. Whether Sage & Umber breached s 27 of the Holidays Act 2003 and whether a penalty should be imposed — Status: Established (paras [87]-[92]).

Section 27(1)(b) of the Holidays Act 2003 requires payment of holiday pay. The Authority found this was breached as no holiday pay was paid. This breach was globalised with the other penalty breaches and a single $500 penalty was imposed across all three breaches.

10. Whether Sage & Umber breached the employment agreement's obligation to pay wages weekly and whether a penalty should be imposed — Status: Established (paras [87]-[92]).

The draft employment agreement required weekly wage payment; the Authority held that even if the agreement was not formally executed, an implied duty to pay wages exists in all employment agreements. The breach was established and was globalised within the same $500 penalty.

11. Whether Pei Su aided and abetted Sage & Umber's breach of the employment agreement regarding payment of wages, and whether a personal penalty should be imposed on him — Status: Dismissed (para [93]).

The Authority considered whether to impose a personal penalty on Mr Su as director for aiding and abetting the company's breach. It declined to do so, primarily because a penalty had already been imposed on the company and a further personal penalty was not considered warranted in the circumstances.

12. Whether leave should be granted under s 142Y of the Employment Relations Act for Ms Kim to pursue payment of arrears from Mr Su personally if Sage & Umber is unable to pay — Status: Established (paras [94]-[100]).

The Authority found that breaches of s 4 of the Wages Protection Act and s 27 of the Holidays Act are "employment standards" matters under s 5 of the Act. Mr Su, as sole director, is an "officer" of Sage & Umber within s 142W(3)(a) and thus capable of being treated as a person involved in the breaches. Applying Labour Inspector v Southern Taxis Ltd [2021] NZCA 705, the Authority found Mr Su had knowledge of the essential facts establishing the contravention — he arranged wages, knew Ms Kim had worked, and knew she had not been paid. Leave was granted for Ms Kim to recover $400.03 from Mr Su if Sage & Umber cannot pay.

13. Whether costs should be awarded — Status: Not reached/Reserved (paras [104]-[105]).

The Authority reserved costs and encouraged the parties to resolve the matter between themselves. If agreement could not be reached, Ms Kim was directed to file a costs memorandum within 28 days, with the respondents having 14 days to reply. The Authority noted its standard daily tariff of $4,500 for the first day and $3,500 for each subsequent full day as a starting point.

The claim was substantially upheld: constructive dismissal was established, remedies of lost wages and compensation were awarded, arrears and holiday pay were ordered with interest, a penalty was imposed on Sage & Umber, and leave was granted to pursue Mr Su personally if the company cannot pay.

- Arrears of wages: $370.40 gross
- Holiday pay: $29.63 gross
- Interest on arrears ($400.03 total) from 12 September 2024 until date of payment (Civil Debt Interest Calculator)
- Lost wages (grievance remedy): $8,704.40 gross
- Compensation for humiliation, loss of dignity and injury to feelings: $18,000.00
- Penalty on Sage & Umber: $500.00 total ($250.00 to Ms Kim; $250.00 to the Crown)
- Personal penalty on Pei Su: None ordered
- Leave granted under s 142Y for Ms Kim to recover $400.03 from Pei Su if Sage & Umber is unable to pay
- Reinstatement: Not ordered
- Costs: Reserved; parties encouraged to agree; memorandum process specified if not resolved
- All monetary orders payable within 28 days of determination date (13 August 2026)

The applicant (SGS, an individual whose identity is suppressed) brought an employment relationship problem against Kim Dotcom, Mrs Dotcom, and ContractorsOnly Limited, claiming to have been engaged as a household and personal assistant and asserting employee status. SGS also applied for non-publication of their identity and sought removal of the substantive matter to the Employment Court. The Authority granted both the non-publication order and the removal application, with costs reserved.

Applicant: SGS (employee/applicant — identity suppressed by non-publication order)
Respondent: Kim Dotcom (First Respondent), and other respondents including Mrs Dotcom and ContractorsOnly Limited

Applicant: Tyrone-Jay Barugh, counsel for the Applicant
Respondent: No appearance

SGS was engaged from approximately March 2026 until May 2026 by ContractorsOnly Limited, performing household and personal assistance services for Kim Dotcom and Mrs Dotcom at their residential properties. SGS contends they were an employee under s 6 of the Employment Relations Act 2000, either as a homeworker or based on the real nature of the relationship, notwithstanding the label in their agreement. SGS argues they were employed personally by Mr and Mrs Dotcom, or alternatively that Mr and Mrs Dotcom were controlling third parties if ContractorsOnly Limited was the employer; SGS also alleges Mrs Dotcom was a person involved in breaches of employment standards. Urgency was granted for both the substantive application and the removal application, and all documents were served on the respondents with a reply deadline of 9:00 am on 10 August 2026; the respondents took no steps to defend either application. A prior related matter (VLN v Dotcom and Ors [2026] NZERA 2026) involving the same respondents and materially identical arrangements had already been removed to the Employment Court, and SGS was engaged as VLN's replacement.

1. Whether a non-publication order suppressing SGS's name and identifying particulars should be granted — Status: Established (paras [1]–[5]).

The Authority applied the open justice principle but recognised that exceptions may be made where appropriate grounds exist. The Authority found that the matter involves Kim Dotcom, whose high-profile proceedings (Dotcom v Minister of Justice [2026] NZCA 284) may attract intense media interest, creating a real risk of lasting harm to SGS's career and exposure to hostile online commentary that SGS is poorly placed to cope with. The Authority concluded that there is little public interest in SGS's identity, while the risk of harm to SGS is significant, satisfying the threshold for an exception. An interim non-publication order was made pending further order of the Authority or the Employment Court.

2. Whether the substantive employment relationship problem (file 3482506) should be decided on the papers — Status: Established (paras [12]–[13]).

The Authority noted that the respondents had not responded to either application, and SGS requested the matter be dealt with on the papers. The Authority was satisfied it was appropriate to proceed without an oral investigation meeting, given the respondents' non-participation and the urgency already granted.

3. Whether grounds existed to remove the whole of the substantive matter (file 3482506) to the Employment Court under s 178(2) of the Employment Relations Act 2000 — Status: Established (paras [14]–[21]).

The Authority holds power under s 178(2) to remove a matter to the Employment Court in defined circumstances, including where the matter is of such nature and urgency that it is in the public interest to do so (s 178(2)(a) and (b)). The Authority found that the same grounds relied upon in the earlier related matter (VLN v Dotcom [2026] NZERA 2026) applied equally here, including that SGS's claim involves the same respondents and materially identical contractual arrangements as VLN's claim, enabling the Employment Court to consider hearing both claims together. The Authority also noted that SGS's entire claim is covered by recent amendments to the Employment Relations Act 2000, and that an important question of law is likely to arise other than incidentally, further supporting removal. The s 178(2)(d) "compelling circumstances" ground was raised by SGS but was not necessary to determine given that other grounds were established.

4. Whether the s 178(2)(d) "compelling circumstances" ground for removal independently applied — Status: Not reached (para [20]).

SGS submitted that s 178(2)(d) independently supported removal. The Authority declined to canvass this ground because the other grounds under s 178(2)(a) and (b) were already made out, making it unnecessary to consider whether s 178(2)(d) should also be invoked.

5. Whether costs should be awarded — Status: Conditional/Reserved (para [23]).

The Authority reserved costs. SGS may seek costs by filing and serving a memorandum within 28 days of the determination; the respondents must reply within a further 14 days. Costs will be determined on the papers.

Both the non-publication order and the removal application were upheld; the substantive employment matter is removed to the Employment Court, with costs reserved.

Reinstatement: No.
Compensation: None ordered at this stage (substantive matter removed to the Employment Court).
Non-publication order: Interim order made suppressing SGS's name and identifying particulars, pending further order of the Authority or the Employment Court.
Costs: Reserved — SGS may file a costs memorandum within 28 days; respondents may reply within a further 14 days; to be determined on the papers.

Valerie Leech, employed as office manager and business support by Electrical Importing Co Limited (EICL) from 5 August 2024, was dismissed on 18 October 2024 with notice paid in lieu. EICL relied on a 90-day trial period clause in the employment agreement to justify the dismissal, but the Authority found the trial period was invalid because Ms Leech was already an employee before the agreement was signed. The Authority upheld Ms Leech's unjustified dismissal grievance and awarded lost wages of $21,250 (gross) and compensation of $13,000 for humiliation, loss of dignity, and injury to feelings.

Applicant: Valerie Leech (employee)
Respondent: Electrical Importing Co Limited (employer)

Applicant: Allen Goldstone, advocate
Respondent: James Cartwright, counsel

Ms Leech was employed as office manager and business support by EICL from 5 August 2024. She was dismissed on 18 October 2024 with notice paid in lieu, EICL purportedly relying on a 90-day trial period clause in the individual employment agreement (IEA). The IEA was not presented to Ms Leech until she arrived at the workplace on the morning of 5 August; prior to that date, the parties had discussed and agreed core terms (pay, duties, hours) by telephone and email, including a start time of 7.30am on 5 August. A dispute of fact arose as to whether Mr Kerr had made clear prior to 5 August that the role was subject to a 90-day trial and whether Ms Leech had agreed to review the agreement before starting — the Authority preferred Ms Leech's version of events. EICL argued that Ms Leech's employment did not formally commence until 8am when she began her substantive duties, and that the IEA execution on the morning of 5 August therefore preceded the commencement of employment. Ms Leech raised personal grievances for unjustified dismissal and unjustified disadvantage; the matter was investigated at a hearing on 9 April 2026 following what appears to have been an unsuccessful earlier resolution process.

1. Whether the individual employment agreement contained a valid 90-day trial period under s 67A of the Employment Relations Act 2000 — Status: Dismissed (paras [24]-[33]).

Section 67A requires strict compliance, including that the trial period be mutually agreed in writing before the prospective employee becomes an employee. Applying the Employment Court's reasoning in Blackmore v Honick Properties Limited [2011] NZEmpC 152 and Smith v Stokes Valley Pharmacy (2009) Ltd [2010] NZEmpC 111, the Authority found that by the time the IEA was signed on the morning of 5 August, Ms Leech was already an employee: the parties had agreed all core material terms (pay, duties, hours) and Mr Kerr had directed her to attend work, making their relationship an employment relationship from at least 31 July or the email exchange of 1–2 August. The Authority further held that even if employment only commenced at 7.30am on 5 August (when Ms Leech arrived as directed), the IEA was not signed until after that time, so the trial period was not agreed before employment commenced. EICL therefore could not lawfully rely on the trial period.

2. Whether Ms Leech raised her personal grievances within the 90-day statutory timeframe, or whether leave should be granted to raise any grievance out of time — Status: Not reached (para [5]).

This issue was identified for determination in relation to events of 5 August 2024 (a footnote in the determination suggests it relates to the circumstances of agreement-signing). Given the finding that the trial period was invalid and the dismissal unjustified, the Authority did not separately resolve this preliminary issue on the merits; the substantive grievances were dealt with in full without further analysis of timeliness.

3. Whether Ms Leech was unjustifiably dismissed — Status: Established (para [34]).

Because the trial period was invalid, the Authority applied the s 103A justification test. It found the test could not be met: Ms Leech was called into a meeting without notice, advised her employment was terminated without reasons being given, and paid out her notice period. No fair and reasonable employer could have dismissed her in those circumstances. The dismissal was therefore unjustified. The Authority also noted (in a footnote) that EICL's error in initially paying only two weeks' notice rather than the agreed four weeks may independently have vitiated reliance on the trial period, citing Ioan v Scott Technology NZ Limited [2019] NZCA 386.

4. Whether Ms Leech was unjustifiably disadvantaged in her employment — Status: Partially established/folded into dismissal finding (para [34]).

The Authority folded the unjustified disadvantage claims (relating to circumstances surrounding the employment ending, including the notice payment dispute) into the unjustified dismissal finding, as they arose from the same factual matrix. No separate analysis or remedy was awarded under the disadvantage head; the matters regarding bargaining for the IEA were noted to be largely moot given the dismissal finding.

5. Whether Ms Leech is entitled to reimbursement of lost remuneration under s 123(1)(b) — Status: Established (paras [35]-[36]).

The Authority accepted Ms Leech's evidence of loss and her attempts to find re-employment. It awarded $21,250 (gross) representing three months' lost remuneration at her rate of pay at the date of dismissal.

6. Whether Ms Leech is entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) — Status: Established (paras [37]-[38]).

Ms Leech gave evidence that the dismissal was shocking and embarrassing, caused emotional harm, that she had already struggled to find employment after a prior redundancy, and ultimately had to relocate to Australia. The Authority was satisfied she suffered harm under each head in s 123(1)(c)(i) and, having regard to the spectrum of harm and comparable awards, awarded $13,000.

7. Whether any remedy should be reduced for Ms Leech's contributory blameworthy conduct under s 124 of the Act — Status: Dismissed (paras [39]-[41]).

The Authority considered EICL's evidence that Ms Leech was not well-matched with the work culture and that her approach had been described as too strong. It found these were matters of style that did not render her unsuitable for the role, and that any such concerns had not been raised with sufficient clarity to give Ms Leech an opportunity to address them. There was no blameworthy contribution, and no reduction was applied.

8. Whether either party is entitled to costs and/or disbursements — Status: Reserved (para [43]).

The Authority reserved costs and encouraged the parties to resolve the issue themselves. A memorandum procedure was set out should a determination be required.

The claim was substantially upheld: the 90-day trial period was found invalid, the dismissal was unjustified, and Ms Leech was awarded lost wages and compensation for humiliation.

- Lost remuneration (s 123(1)(b)): $21,250 (gross) — representing three months' lost wages at the rate of pay at dismissal.
- Compensation for humiliation, loss of dignity, and injury to feelings (s 123(1)(c)(i)): $13,000.
- Contribution reduction: None applied.
- Reinstatement: Not ordered and not sought.
- Costs: Reserved; parties encouraged to negotiate; memorandum process set out if required.
- All amounts payable within 28 days of the date of determination.

FHE, a Parking Officer employed by Auckland Transport (AT) from January 2019, was dismissed for serious misconduct in May 2025 following a disciplinary investigation into allegations of harassing his former girlfriend (Ms C) — a former AT employee — through emails sent from his work account, impersonation of colleagues, and repeatedly positioning himself near her workplace during work hours. FHE raised personal grievances for unjustified dismissal and unjustified disadvantage (relating to his suspension), as well as related claims for breach of good faith and penalties. The dismissal grievance was dismissed, but FHE succeeded on the unjustified disadvantage grievance concerning the manner in which his initial suspension was effected on 18–19 February 2025, resulting in a $3,000 compensation award.

Applicant: FHE (employee — Parking Officer)
Respondent: Auckland Transport (employer)

Applicant: Self-represented (formerly represented by counsel; represented himself from December 2025 onward)
Respondent: Charlotte Parkhill and Luke Ji, counsel for the Respondent

FHE was employed as a Parking Officer by Auckland Transport from 21 January 2019. From mid-2024, AT received complaints from Ms P (the mother of FHE's former girlfriend, Ms C, also a former AT employee) alleging FHE was harassing Ms C through AT email communications and by loitering near her new workplace. After a prolonged delay, AT's risk investigators interviewed Ms C and Ms P in February 2025 and handed the matter to AT's People and Performance department. On 18 February 2025, FHE was called to an unannounced meeting, given a letter outlining eight allegations and a proposal to suspend him pending investigation, and was then effectively sent home that day without a proper opportunity to arrange a legal representative or formally respond to the suspension proposal; formal written notice of suspension followed on 20 February. After a disciplinary process involving multiple exchanges of documentation and a disciplinary meeting, AT's Group Manager Tracey Berkhan concluded FHE had harassed Ms C by email, by impersonating AT colleagues in messages, and by deliberately positioning himself near her workplace, and dismissed him for serious misconduct on 7 May 2025. FHE denied the allegations throughout the disciplinary process, claiming his email accounts had been hacked, but admitted at the ERA investigation meeting in May 2026 that he had in fact sent the relevant emails and had been dishonest during the disciplinary process. FHE raised personal grievances for unjustified dismissal, unjustified disadvantage (relating to his suspension), breach of good faith, and sought reinstatement, lost wages, and compensation.

1. Whether AT acted unjustifiably in effectively suspending FHE on 18–19 February 2025, before formal written suspension on 20 February — Status: Established (paras [79]–[97]).

The applicable test is the s 103A(2) statutory justification standard — whether AT's actions were what a fair and reasonable employer could have done in the circumstances — together with natural justice principles requiring consultation before a suspension decision is made (per Hong v Auckland Transport [2019] NZEmpC 54). The Authority found that FHE was called to a surprise meeting with insufficient notice to arrange a qualified representative (contrary to AT's own Code of Conduct), was effectively told to leave and required to hand over his work phone and swipe card, and that the suspension decision had in fact already been made by 18 February despite formal communication following two days later; his departure was obedience, not agreement. This constituted an unjustified disadvantage personal grievance for the period of 18–19 February 2025.

2. Whether AT acted unjustifiably in formally suspending FHE from 20 February 2025 onwards — Status: Dismissed (paras [81]–[83]).

Applying the s 103A(2) test, the Authority found that a fair and reasonable employer could have suspended FHE on full pay while investigating serious harassment allegations; the restriction on IT access and workplace entry was also reasonable given the nature of the allegations. While alternative arrangements (such as joint patrols in a different area) were argued, it was within the range of reasonable responses for AT to decline these due to supervisory complexity. No personal grievance was established in respect of the formal suspension from 20 February.

3. Whether the delay in AT's investigation of Ms C's complaints constituted a defect in the disciplinary process — Status: Partially established as a procedural defect, but not resulting in unfair treatment of FHE (paras [99]–[110], [133]–[134]).

AT's Harassment Policy required investigations to be managed "promptly." The Authority found approximately seven months elapsed between the initial harassment allegation and the 3 February 2025 interview, with AT taking a passive approach after providing Ms P with contact details. This fell below the standard of a fair and reasonable employer and did not meet AT's own policy requirements. However, the delay was not shown to have caused FHE to be treated unfairly in the disciplinary process itself; the delay primarily meant some of FHE's alleged misconduct occurred during the intervening period but did not distort the investigation outcome.

4. Whether AT's withholding of certain information (including the risk investigators' case note and redacted complaints from Ms C and Ms P) breached good faith and constituted an unfair investigative defect — Status: Established as a technical defect under s 4(1A), but not resulting in unfair treatment (paras [111]–[122]).

Section 4(1A)(c) of the Act requires an employer to provide access to relevant information where a disciplinary process may result in termination. The Authority found that AT's reliance on s 4(1B) privacy exceptions was applied too broadly — natural justice (as expressed in AT's own policy) warranted disclosure of the full content of what Ms C and Ms P said about FHE. Mr Lowen's concession that he "may have been overly cautious" was accepted. However, the Authority found the withheld material was not the substantive basis for Ms Berkhan's conclusions (which focused on objectively verifiable work-related conduct), and the defect did not ultimately result in FHE being treated unfairly.

5. Whether AT's failure to investigate the effect of FHE's mental health issues constituted an unfair defect in the disciplinary process — Status: Dismissed (paras [123]–[132]).

While the Authority noted AT managers were aware of changes in FHE's presentation and some text communication expressing concern about his wellbeing, and that potentially relevant mental health information existed, FHE himself did not raise mental health issues as directly relevant to the specific allegations during the disciplinary process (his explanation was hacking, not mental health impairment). In those circumstances, AT was not found to have treated FHE unfairly by not proactively investigating this factor further.

6. Whether AT's finding that FHE had committed serious misconduct was justified — Status: Dismissed (i.

e., the finding of serious misconduct was upheld as justified) (paras [139]–[153]).
Applying the s 103A(2) test, and the principle that a reasonably founded, honestly held belief is required (Ritchies Transport Holdings Ltd v Merennage [2015] NZEmpC 198), the Authority found AT had a sufficient evidential basis for each substantive allegation: (1) the 9 July email sent from FHE's AT account to Ms C; (2) FHE's presence near Ms C's workplace on at least four dates, corroborated by GPS and ticketing data and third-party accounts; (3) messages sent posing as colleague Mr Z (supported by drafts found in FHE's work email and Mr Z's denial). The fourth allegation (sending work forms to personal email) was put aside as no wrongdoing was found. Ms Berkhan's conclusions were what a fair and reasonable employer could have reached on the evidence available.

7. Whether dismissal was within the range of reasonable responses — Status: Dismissed (i.

e., dismissal upheld as justified) (paras [154]–[158]).
Following the principle in Cowan v Idea Services Limited [2020] NZCA 239 that a range of responses is open to a fair and reasonable employer, the Authority accepted that Ms Berkhan considered but reasonably rejected alternatives (such as reassignment with monitoring), finding the misconduct — including harassment of a former partner using work resources and impersonating colleagues — irreparably destroyed trust and confidence. Dismissal was reasonably and fairly reached.

8. Whether remedies (reinstatement, lost wages, compensation for humiliation) should be awarded for unjustified dismissal — Status: Not reached (para [159]).

As no unjustified dismissal grievance was established, no remedies were available on that basis. The Authority noted obiter that, had dismissal been unjustified, any monetary remedy would have faced substantial reduction for FHE's contributory blameworthy conduct (his admitted dishonesty during the disciplinary process), and reinstatement would most likely have been unavailable for the same reason.

9. Whether compensation for humiliation, loss of dignity and injury to feelings should be awarded for the unjustified disadvantage grievance (18–19 February suspension) — Status: Established (paras [160]–[168]).

Under s 123(1)(c) of the Act, compensation for humiliation, loss of dignity and injury to feelings is available for a personal grievance. The Authority found FHE experienced shock, agitation, and humiliation as a result of the unexpected, improperly conducted suspension on 18–19 February, as corroborated by Ms Kita's evidence. The award of $3,000 was assessed as appropriate and consistent with comparable cases, notably Hong v Auckland Transport [2019] NZEmpC 54. No reduction for contributory conduct was applied, as the unjustified conduct on 18–19 February preceded FHE's subsequent dishonesty in the disciplinary process.

10. Whether lost remuneration should be awarded for the unjustified disadvantage grievance — Status: Dismissed (para [161]).

No lost wages were available for the unjustified disadvantage because FHE was on full pay throughout 18–19 February and for the duration of the subsequent (justified) formal suspension.

11. Whether a penalty should be imposed on AT for breach of good faith — Status: Dismissed (paras [169]–[174]).

The Authority found that AT's procedural shortcomings (improper suspension process and overzealous withholding of documents in breach of s 4(1A)) had already been addressed within the personal grievance findings. The breach was short-term rather than sustained. Additionally, imposing a penalty in circumstances where FHE had himself admitted dishonest conduct during the investigation was considered disproportionate. No penalty was imposed.

12. Whether recommendations should be made about AT's disciplinary policy under s 123(1)(ca) of the Act — Status: Dismissed (paras [175]–[176]).

The Authority declined to make recommendations, noting that the findings in the determination, along with other Authority and Court decisions, provided sufficient basis for AT to reflect on and improve how its managers applied disciplinary policy (including suspension provisions) without a formal recommendation.

13. Whether non-publication orders should be continued for FHE, Ms C, and Ms P — Status: Established (continuing orders made) (paras [177]–[184]).

The Authority maintained non-publication orders under clause 10 of Schedule 2 of the Act for FHE's name, Ms C's name, and Ms P's name. Key reasons included: (1) naming FHE risks indirect identification of the complainants who had not consented to public disclosure; (2) the misconduct arose from a single failed relationship rather than a systemic risk pattern; (3) the public interest in AT's zero-tolerance approach to harassment is served by the determination's description of events without naming the individuals; and (4) there was medical evidence supporting a reasonable expectation of specific adverse consequences to FHE's mental health if his identity were published. AT's opposition to the continuation of FHE's non-publication order was rejected.

14. Costs — Status: Reserved (para [188]–[189]).

The Authority reserved costs and encouraged the parties to resolve costs between themselves. If unable to agree, either party may lodge a memorandum on costs within 28 days of the determination. The Authority indicated costs would ordinarily be assessed on its usual notional daily rate, subject to adjustment, and flagged that a proposal recorded in a Minute of 26 November 2025 would be a relevant consideration.

The claim was partially upheld: the unjustified dismissal grievance was dismissed, but the unjustified disadvantage grievance (relating to the manner of initial suspension on 18–19 February 2025) was established, resulting in a $3,000 compensation award; all other claims (penalty, lost wages, reinstatement, recommendations) were dismissed or not ordered.

Compensation for humiliation, loss of dignity and injury to feelings (unjustified disadvantage — 18–19 February 2025 suspension): $3,000, payable within 28 days of the determination date.
Lost wages: None ordered (FHE was on full pay throughout).
Reinstatement: Not ordered (dismissal found justified).
Penalty: None ordered.
Recommendations: None made.
Costs: Reserved; parties to file memoranda within 28 days if unable to agree.

[COSTS ONLY]

This is a costs determination following the Authority's earlier substantive decision ([2026] NZERA 346) in which Heather Howard's employment claims against Independent Timber Merchants Co-Operative Limited (ITM) were entirely unsuccessful. The key question was whether, and to what extent, costs should be awarded in ITM's favour, including whether an uplift was warranted because Ms Howard had rejected a reasonable Calderbank offer. The Authority ordered Ms Howard to pay ITM $8,620.13 in costs and disbursements, payable in two equal instalments.

Applicant: Heather Howard (employee)
Respondent: Independent Timber Merchants Co-Operative Limited (employer)

Applicant: Self-represented
Respondent: Catherine Stewart and Sanja Q L Deo, counsel for the Respondent

The Authority's substantive determination of 3 June 2026 dismissed all of Ms Howard's employment claims against ITM. Costs were reserved at that time in the hope the parties could settle the issue, but they were unable to do so. ITM filed a costs application on 29 June 2026, seeking $6,250 based on the notional daily tariff for one and a half days of investigation hearing, a $7,500 uplift for Ms Howard's rejection of a Calderbank offer made on 29 October 2025, $2,000 for preparation of costs submissions, and disbursements of $388.34. Ms Howard opposed any significant award, citing her reliance on legal advice in declining the Calderbank offer, her financial circumstances, and the legitimacy of her claims. ITM argued that the claims had little prospect of success, that the Calderbank offer was reasonable and was rejected with legal representation in place, and that the breadth and seriousness of the claims significantly increased its legal costs.

1. Whether costs should be awarded against Ms Howard as the unsuccessful party — Status: Established (paras [1], [6]–[8], [10]).

The Authority's discretion to award costs is governed by s 15 of Schedule 2 of the Employment Relations Act 2000, guided by the principle that costs generally follow the event, that awards are modest, and that costs are not a punishment. The Authority confirmed that Ms Howard was wholly unsuccessful in her claims and that ITM was entitled to a costs contribution as the successful party. The Authority found Ms Howard did not bring the matter with intent to waste time but noted that claims brought without evidential basis unnecessarily increased ITM's costs.

2. Whether the notional daily tariff should be uplifted due to rejection of a valid Calderbank offer — Status: Established (paras [13]–[18]).

The applicable principles, drawn from the Authority's Practice Direction and Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385, allow the tariff to be adjusted where a reasonable settlement offer was rejected and the ultimate outcome was worse for the rejecting party. The Calderbank offer of 29 October 2025 was found to be valid and reasonable; Ms Howard, who was represented at the time, rejected it (belatedly, on 12 November 2025), and would have been substantially better off financially had she accepted. The Authority found this warranted an uplift of one-third on the notional tariff (raising it from $6,250 to $8,312.50), but not the full $7,500 uplift ITM sought, on the basis that Ms Howard's conduct did not justify the higher amount.

3. Whether separate costs for preparation of the costs submission should be awarded — Status: Dismissed (paras [19]–[20]).

ITM sought $2,000 for preparing its costs submissions, noting Ms Howard had declined an offer to settle costs and gave no counteroffer. Referring to Booth v Big Kahuna Holdings Ltd [2015] NZEmpC 4, the Authority acknowledged the principle that a party should be able to claim reasonable costs for this work, but concluded that, given the uplift already applied to the daily tariff, no additional award for costs-submission preparation was warranted.

4. Whether Ms Howard's financial circumstances should affect the costs order — Status: Partially established (para [21]).

Ms Howard provided documentation of her financial circumstances. The Authority accepted this was relevant and, while it did not reduce the quantum of costs awarded, ordered that payment be made in two equal instalments over a longer period than usual, accommodating her financial position.

5. Whether the disbursements claimed by ITM ($388.34) should be awarded in full — Status: Partially established (para [22]).

The Authority reviewed the claimed disbursements and excluded parking costs and counsel travel expenses as not recoverable, allowing only printing costs of $307.63.

The costs application was partially upheld: Ms Howard was ordered to pay costs with an uplift for the Calderbank rejection, but the full uplift and separate costs-submission award were refused, and disbursements were reduced.

Costs contribution: $8,312.50 (notional daily tariff of $6,250 uplifted by one-third).
Disbursements: $307.63 (printing costs only; parking and travel excluded).
Total: $8,620.13, payable in two equal instalments — first instalment of $4,310.10 within 28 days of the determination; second instalment of $4,310.03 within 90 days of the determination.
Reinstatement: Not applicable.