Stay informed about NZ Employment law

Sophie Kennett, a Sandwich Artist/Assistant Manager employed by Polygon GY Developments Limited (a Subway franchise operator), brought claims for unjustified dismissal, constructive dismissal, unpaid wages, statutory entitlement breaches, and penalties following the termination of her employment in January 2025. The key legal questions concerned whether her employment was continuous across two leave periods engineered by her employer, whether she was unjustifiably and/or constructively dismissed, and whether statutory entitlements had been correctly calculated. The Authority found in Ms Kennett's favour on all primary claims, awarding notice pay, lost wages, hurt/humiliation compensation, unpaid wages, statutory entitlements, a penalty, and interest.

Applicant: Sophie Kennett (employee — Sandwich Artist/Assistant Manager)
Respondent: Polygon GY Developments Limited (employer — Subway franchise operator)

Applicant: Linda Ryder, advocate
Respondent: Emma Stephen, counsel

Ms Kennett commenced employment with Polygon in March 2023 as a Sandwich Artist and later moved to the Bishopdale store. In November 2023, her employer refused her leave request and, the Authority found, required her to resign effective 19 December 2023 with assurances of re-employment as Assistant Manager; she was rehired under a new employment agreement from 22 January 2024. A similar pattern emerged in December 2024: after another leave request for the new year period was declined, Ms Kennett says Mr Greene again required her to resign on 11 December 2024 during a heated confrontation, giving assurances she would return on 15 January 2025. She resigned effective 20 December 2024, and the next day received a letter notifying her that Polygon was selling the Bishopdale store; on 10 January 2025 she received a final letter confirming she would not be employed by the purchaser and that Polygon deemed her employment ended on the date of her resignation. The Authority found that Ms Kennett remained an employee after her resignation (as a "person intending to work") and was effectively dismissed on 10 January 2025 without notice, without proper consultation, and without proper redeployment consideration.

1. Whether Ms Kennett's employment was continuous across the December 2023–January 2024 period for Holidays Act purposes — Status: Established (paras [44]-[63]).

Section 85 of the Holidays Act 2003 provides that if an employer dismisses an employee and re-employs them within a month, employment must be treated as continuous. The Authority preferred Ms Kennett's evidence over Mr Greene's (finding him inconsistent and prone to providing explanations difficult to reconcile with the written record), and determined that Mr Greene required Ms Kennett to resign — not merely presenting it as an option — with a promise of an Assistant Manager role. This amounted to a dismissal at Polygon's initiative within the meaning of s 85, and Ms Kennett was re-employed on 29 December 2023 (within a month), rendering her employment continuous. The Authority cited Pinder v S & O Bayliss Limited [2022] NZERA 646 in finding that Ms Kennett's reliance on assurances of continued employment sufficed to make her a "person intending to work" and thus an employee immediately following her resignation.

2. Whether Ms Kennett was employed by Polygon beyond 20 December 2024 — Status: Established (paras [64]-[73]).

The Authority applied the s 6(1)(b)(ii) definition of "employee" under the Employment Relations Act 2000, which includes "a person intending to work" — someone who has been offered and accepted work. The Authority found, on the balance of probabilities, that Mr Greene again gave definitive assurances of re-employment in January 2025 during the 11 December 2024 confrontation, and that Ms Kennett relied on those assurances. Supporting factors included: the pattern of conduct from the prior year; the 20 December 2024 restructure letter treating Ms Kennett as a current employee with ongoing obligations; Mr Greene's non-response to Ms Kennett's 24 December 2024 email asserting her return date; and his instruction to return her key only "for the holiday period" while not requiring return of her uniform.

3. When did Ms Kennett's employment end — Status: Established (paras [74]-[76]).

The Authority found that the 6 January 2025 consultation meeting did not clearly communicate termination, as matters remained uncertain at that point. It was only the 10 January 2025 outcome letter that constituted the clear communication of termination, and Ms Kennett's employment therefore ended with immediate effect on 10 January 2025.

4. Whether Ms Kennett was unjustifiably dismissed — Status: Established (paras [77]-[99]).

The test under s 103A(2) of the Act requires an objective assessment of whether Polygon's actions were those of a fair and reasonable employer. The Authority found the dismissal both substantively and procedurally unjustified. Substantively: Polygon terminated Ms Kennett on 10 January 2025 when the sale remained conditional and uncertain (franchisee training incomplete, franchisor approval pending), meaning her position had not yet been established as ceasing to exist; and Polygon failed its redeployment obligations by not offering available Sandwich Artist roles at its other stores (citing Michael Ritson-Thomas t/a Totara Hills Farm v Hamish Davidson [2013] NZEmpC 39). Procedurally: Polygon failed to consult Ms Kennett before signing the Sale and Purchase Agreement (s 4(1A)(c) of the Act; Birthing Centre Limited v Matsas [2023] NZEmpC 162); dismissed without the four-week contractual notice period; refused to provide relevant requested information; and failed to comply with employment agreement obligations regarding the sale process.

5. Whether Ms Kennett was constructively dismissed — Status: Established (paras [100]-[107]).

The Authority applied the well-established three-limbed test from Auckland Shop Employees Union v Woolworths (NZ) Ltd (1985) 2 NZLR 372 (CA) and the Court of Appeal's requirement (from the same case) that any breach be serious enough that a substantial risk of resignation was reasonably foreseeable. The Authority found that Mr Greene presented resignation as the only viable option during a heated confrontation in which Ms Kennett felt intimidated, without allowing time for reflection or legal advice. Polygon thereby breached its duty to Ms Kennett, directly causing her resignation, and the breach was sufficiently serious that resignation was reasonably foreseeable. The Authority noted this finding was considered within the overall remedies assessment rather than attracting a separate remedy.

6. Whether Ms Kennett is owed a notice period — Status: Established (paras [108]-[111]).

Ms Kennett's employment agreement required four weeks' written notice; the only exception was serious misconduct, which was not applicable. Polygon dismissed her with immediate effect without paying notice. The Authority awarded four weeks' notice calculated at 38 hours per week at $25.65 per hour = $3,898.80 (gross), plus 3% KiwiSaver employer contributions (but not annual holiday pay, as it would not have been received if notice were paid in lieu).

7. Whether Ms Kennett is entitled to personal grievance remedies (lost wages) — Status: Established (paras [112]-[121]).

Under ss 123 and 128 of the Act, the Authority must award the lesser of actual lost remuneration or three months' ordinary time remuneration, subject to the duty to mitigate. Ms Kennett mitigated by securing new employment from 5 April 2025 (not challenged by Polygon). The Authority calculated loss from 8 February to 12 February 2025 (after the notice period), then uplifted the award to six weeks (from five days) to reflect the lost opportunity of continued employment while accounting for the realistic possibility she might have declined redeployment to a lesser role, applying the "loss of a chance" analysis from Waitakere City Council v Ioane [2004] 2 ERNZ 194. Six weeks was less than three months, so $5,848.20 (gross) was awarded; no additional annual holiday pay or KiwiSaver contributions were awarded given the compensatory/estimated nature.

8. Whether Ms Kennett is entitled to personal grievance remedies (compensation for hurt, humiliation, loss of dignity) — Status: Established (paras [122]-[125]).

The Authority assessed compensation under s 123(1)(c)(i), guided by Employment Court decisions including Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71; Waikato District Health Board v Archibald [2017] NZEmpC 132; Richora Group Ltd v Cheng [2018] NZEmpC 113; and GF v Comptroller of NZ Customs Service [2023] NZEmpC 101. Ms Kennett experienced depression, anxiety, panic attacks, and required counselling and medication. The Authority assessed moderate humiliation and awarded $19,000, reflecting the adverse impact while noting she had secured new employment.

9. Whether Ms Kennett's own conduct contributed to the personal grievance — Status: Dismissed (para [126]).

Under s 124 of the Act, the Authority must consider whether the employee's actions contributed to the grievance. The Authority found that Ms Kennett's conduct did not contribute to the grievance and therefore applied no reduction to any remedies.

10. Whether Ms Kennett is owed unpaid wages — Status: Partially established (paras [127]-[142]).

The Authority analysed each category of disputed wages. It found that: employees who work through breaks must be paid for that work; administrative failures to record hours on variance sheets do not extinguish the right to pay if the work was genuinely performed and benefited the employer; small unauthorised additional hours by a duty manager must be remunerated where the employer knew of and benefited from the work; and an employer cannot unilaterally reduce pay for approved tasks on the basis of its subjective view about reasonable duration (absent an explicit time constraint). However, the Authority accepted Polygon's position where timesheets and variance sheets showed different hours, finding it reasonable to rely on variance sheets. The Authority awarded $237.98 (gross) (9.25 underpaid hours, slightly less than Ms James' $263.63 calculation), plus 8% annual holiday pay and 3% KiwiSaver contributions.

11. Whether Ms Kennett is owed statutory entitlements under the Holidays Act — Status: Established (paras [143]-[145]).

Having found employment was continuous under s 85 of the Holidays Act, the Authority accepted Ms James' calculations (agreed by Polygon if continuity was found) and awarded $2,657.85 (gross) in outstanding statutory entitlements, plus 3% KiwiSaver employer contributions.

12. Whether Polygon is liable for penalties for Holidays Act breaches — Status: Established (paras [146]-[153]).

The Authority had jurisdiction under s 161(m)(iii) of the Act to award penalties for Holidays Act breaches. Applying Borsboom v Preet PVT Limited [2016] NZEmpC 143, the Authority treated all Holidays Act breaches (relating to annual holidays, sick leave, and public holidays) as a single course of conduct attracting a maximum penalty of $20,000. The breaches were intentional in the sense that Polygon made a deliberate choice to treat employment as two discrete periods to minimise statutory liability; Ms Kennett was vulnerable and uninformed about the consequences. A penalty of $2,000 was ordered (s 136 of the Act): 50% to Ms Kennett and 50% to the Crown. Penalties for failure to provide wage and time records were not pursued by Ms Kennett at the Investigation Meeting.

13. Whether Ms Kennett is entitled to interest on remedies — Status: Established (paras [154]-[155]).

Interest was awarded under clause 11(1) of Schedule 2 of the Act on the notice period, unpaid wages, and statutory entitlements from 10 January 2025 (date of dismissal) to the date of payment. Using 28 days from the date of determination for calculation purposes, interest of $448.22 was awarded.

14. Costs — Status: Reserved (paras [157]-[159]).

Costs were reserved. The parties were encouraged to resolve costs between themselves. If unable to do so, Ms Kennett may lodge a costs memorandum within 28 days, with Polygon having 14 days to reply. The Authority indicated it would apply the usual daily tariff basis.

The claim was substantially upheld: Ms Kennett's unjustified dismissal and constructive dismissal were established, and remedies were awarded for notice, lost wages, hurt/humiliation compensation, unpaid wages, statutory entitlements, a penalty, and interest.

- Statutory entitlements: $2,657.85 (gross) plus 3% KiwiSaver employer contributions
- Unpaid wages: $237.98 (gross) plus 8% annual holiday pay and 3% KiwiSaver employer contributions
- Notice period: $3,898.80 (gross) plus 3% KiwiSaver employer contributions
- Lost wages: $5,848.20 (gross)
- Compensation (hurt, humiliation, loss of dignity): $19,000
- Penalty: $2,000 (50% = $1,000 to Ms Kennett; 50% = $1,000 to the Crown)
- Interest: $448.22
- Costs: Reserved
- All payments due within 28 days of the determination
- Reinstatement: Not ordered

Rakai Tawhiwhirangi, a Principal Corrections Officer at Arohata Prison, was dismissed on 19 July 2024 following an employment investigation into his use of force on a female prisoner (NWM) on 28 April 2021 and his failure to report the incident. Mr Tawhiwhirangi had previously been acquitted of common assault in the District Court on grounds of self-defence arising from the same incident. The Authority found his dismissal was unjustified because Corrections effectively re-litigated the District Court's factual findings, failed to clearly identify remaining policy breaches as serious misconduct independently of those findings, and used a decision-maker with a conflict of interest; however, reinstatement was declined as impracticable and unreasonable, and remedies were reduced by 15% for Mr Tawhiwhirangi's contributory conduct.

Applicant: Rakai Tawhiwhirangi (employee, Principal Corrections Officer)
Respondent: The Chief Executive of the Department of Corrections (employer)

Applicant: Barbara Buckett and Lucy Fisher, counsel for the Applicant
Respondent: David Traylor, Lewis Miller and Nikki Farrell, counsel for the Respondent

Mr Tawhiwhirangi had worked for Corrections for approximately 40 years and on 28 April 2021 struck prisoner NWM once in the throat area at Arohata Prison to prevent her spitting at him. No incident report was filed following the incident. Corrections commenced an employment investigation in May 2021, which was paused pending a criminal prosecution; the District Court acquitted Mr Tawhiwhirangi of common assault on 25 May 2023 based on self-defence (finding his pre-emptive action was not disproportionate). The employment investigation resumed and, on 19 July 2024, Corrections dismissed Mr Tawhiwhirangi finding he had used unjustified and/or unreasonable force and had failed to report the incident, treating both as serious misconduct under the Code of Conduct and Corrections Act 2004. Mr Tawhiwhirangi argued his dismissal was both substantively and procedurally unjustified, primarily because Corrections ignored the District Court finding that his use of force was lawful and proportionate; Corrections maintained its investigation was distinct from the criminal process and focused on compliance with its own policies and procedures.

1. Whether Mr Tawhiwhirangi's dismissal was unjustified under s 103A of the Employment Relations Act 2000 — Status: Established (paras [51]-[96]).

The Authority applied the s 103A objective test of what a fair and reasonable employer could have done in all the circumstances. Corrections' dismissal was found unjustified on three main grounds: (a) Corrections said it would not rely on the District Court findings but in fact reconsidered the same factual matrix (lawfulness of force, proportionality, whether hoicking sounds were made, whether NWM was about to spit) and reached opposite conclusions, which it could not fairly do given those findings; (b) Corrections failed to separately and clearly identify which remaining policy breaches — independent of the application of force — reached the threshold of serious misconduct; and (c) the decision-maker Ms Carey had a direct evidential conflict with Mr Tawhiwhirangi about his presence in the Receiving Office, raising a perception of bias or pre-determination that a large organisation like Corrections could have avoided. The Authority also noted that "atawhai" conduct was taken into account despite not forming part of the formal allegations. Authorities cited include Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160 and NZ Engineering Union v Fletcher Construction Ltd [1989] 3 NZILR 279.

2. Whether an unjustified disadvantage personal grievance was established (flawed investigation report and conflation of investigation/disciplinary processes) — Status: Not reached (para [96]).

Having found the dismissal unjustified, the Authority recorded it was unnecessary to consider the separate disadvantage grievances, noting they overlapped substantially with the dismissal claim; a globalised compensation figure was awarded instead.

3. Whether Corrections breached the Collective Agreement — Status: Dismissed (paras [132]-[135]).

Mr Tawhiwhirangi sought damages for failures to comply with the Collective Agreement, including not recognising Māori cultural implications (cl 1.5.2(d)) and delivering the final decision by email rather than in person. The Authority found very little evidence of a breach of the cultural recognition clause; and to the extent any other breach existed, a separate damages award would not be appropriate as the compensation award already addressed the same factual matrix.

4. Whether Corrections breached its statutory obligation of good faith under ss 3 and 4 of the Act — Status: Partially established (paras [80], [96], [139]).

The Authority found good faith breaches were identifiable within the broader findings of unjustified dismissal and disadvantage. However, no penalty was awarded under s 4A because the breaches were not found to be deliberate, serious, or sustained — they arose from an investigation that could not have been avoided once circumstances came to light, and most of the delay was attributable to Mr Tawhiwhirangi's own exercise of his right to silence.

5. Whether reinstatement should be ordered — Status: Dismissed (paras [97]-[124]).

Reinstatement is the primary remedy under the Act, requiring it to be both practicable and reasonable (Hong v Auckland Transport [2019] NZEmpC 54; Vegepod NZ Limited v Lowe [2025] NZEmpC 76; Genesys Telecommunications Laboratories Ltd v Scott [2019] NZEmpC 113). The Authority declined reinstatement, weighing: approximately five years' absence from the workplace (cf. Gumbeze v Chief Executive of Oranga Tamariki [2024] NZEmpC 133); a major policy shift toward trauma-informed practice and a target female/male staff ratio at Arohata; no vacant PCO roles nationally; spontaneous comments during the investigation raising concerns about Mr Tawhiwhirangi's attitudes toward female prisoners (including telling NWM she "should have known better" about being a battered woman and an earlier "went to slap her" comment); and his failure to report the incident. The Authority found reinstatement would not be workable or reasonable despite Mr Tawhiwhirangi's willingness to retrain.

6. Whether compensation for hurt, humiliation, loss of dignity and injury to feelings should be awarded under s 123(1)(c)(i) — Status: Established (paras [125]-[131]).

A globalised award was considered appropriate given the overlap between the two disadvantage grievances and the dismissal grievance. The Authority accepted Mr Tawhiwhirangi's evidence of significant personal impact — withdrawal from social life, anxiety, financial strain, weight loss, sleep disruption, and the end of a long career — though the total distress was not entirely attributable to Corrections (part was attributable to the length of the criminal process which benefited Mr Tawhiwhirangi). A moderate award in Band 2 of the scale set out in GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101 was appropriate; $20,000 before contribution reduction.

7. Whether lost wages should be awarded under ss 123(1)(b) and 128 of the Act — Status: Established, limited to three months (paras [136]-[137]).

The Authority awarded lost wages equivalent to three months' ordinary time remuneration, declining to exercise the discretion to order a greater amount. The investigation took a long time but no circumstances arose tending to show losses beyond the three-month cap were caused by the unjustified dismissal itself.

8. Whether loss of monetary benefits (retirement/long service leave) should be awarded — Status: Not reached/Withdrawn (para [138]).

This claim was withdrawn by Mr Tawhiwhirangi on the basis retirement leave had been paid out at the end of his employment.

9. Whether a penalty should be awarded against Corrections for breach of good faith under s 4A of the Act — Status: Dismissed (para [139]).

The Authority held that while good faith breaches can arise where an employer has not acted fairly during an investigation, s 4A requires the breaches to be deliberate, serious, and sustained. The breaches here were not deliberate or sustained; the investigation was necessary once circumstances became known, and most delay was not attributable to Corrections. No penalty was awarded.

10. Whether an award of damages should be made against Corrections for breaches of contract — Status: Dismissed (paras [132]-[135]).

The claim for contractual damages based on non-compliance with the Collective Agreement and failure to provide a safe workplace and recognise Māori cultural implications was not supported by sufficient evidence. Any overlap with the unjustified dismissal remedies meant a separate damages award was not appropriate.

11. Whether interest should be awarded — Status: Not reached/Not determined.

Interest was listed as an issue but no express determination or award of interest was made in the determination.

12. Whether remedies should be reduced for Mr Tawhiwhirangi's contributory conduct under s 124 of the Act — Status: Established at 15% (paras [140]-[163]).

The Authority applied the four-step approach from Sheridan v Pact Group [2026] NZEmpC 51 (citing Maddigan v Director-General of Conservation [2019] NZEmpC 190). Mr Tawhiwhirangi's blameworthy contributions included: putting himself in NWM's personal space rather than using de-escalation strategies available under Corrections' policies; failing to consider alternatives (spit hood, stepping back, body-worn cameras); and failing to report the use of force, which prevented a mandatory medical assessment and triggered none of the required post-incident steps. Although his spontaneous force was found lawful, his conduct before and after departed from policy and training. A 15% reduction was applied to both remedies, noted as less than the 25% threshold described as "significant" in Maddigan.

13. Whether non-publication orders should be made in respect of Mr Tawhiwhirangi's name — Status: Dismissed (paras [164]-[171]).

Applying the test from MW v Spiga Limited [2024] NZEmpC 147, the Authority declined permanent non-publication of Mr Tawhiwhirangi's name. The adverse consequences advanced (privacy, employment prospects, safety, stigma) were general assertions rather than specific consequences. Crucially, there was no name suppression in the District Court, and the determination necessarily referred to that judgment — making a non-publication order futile (citing AJH v Fonterra Co-Operative Group Ltd [2021] NZEmpC 111 and Crimson Consulting Ltd v Berry [2017] NZEmpC 94).

14. Whether non-publication orders should be made in respect of NWM, GQF and other Corrections employees who did not give evidence — Status: Established (paras [1], [164], [172]-[173]).

Permanent non-publication orders were made for the prisoner NWM, Corrections Officer GQF, and all other Corrections employees who were named in evidence but did not give evidence. The public interest in open justice was outweighed by the privacy and confidentiality interests of persons peripheral to the employment dispute who were not parties to it.

15. Whether costs should be awarded — Status: Reserved (para [164] (costs paragraph, mis-numbered in determination as [164]-[166])).

Costs were reserved. The parties were encouraged to resolve costs between themselves, with a memorandum procedure set out if agreement cannot be reached, to be determined on the Authority's usual daily tariff basis.

The claim was partially upheld: unjustified dismissal was established, reinstatement was declined, compensation and lost wages were awarded subject to a 15% contributory reduction, and penalty, damages, and non-publication orders for Mr Tawhiwhirangi were dismissed.

Compensation under s 123(1)(c)(i) (hurt, humiliation, loss of dignity): $20,000 less 15% contribution reduction = $17,000.00
Lost wages under ss 123(1)(b) and 128: three months at $7,773.50/month = $23,320.50 less 15% contribution reduction = $19,882.50 (approximately $19,882.42 per footnote 37)
Reinstatement: No
Loss of monetary benefits: Nil (withdrawn)
Damages for breach of contract: Nil
Penalty for good faith breach: Nil
Interest: Not determined
Costs: Reserved — parties to negotiate; if unresolved, memorandum procedure applies; Authority will apply usual daily tariff
Non-publication: Permanent non-publication orders for NWM, GQF and other non-testifying Corrections employees; application for non-publication of Mr Tawhiwhirangi's name declined
All monetary remedies payable within 28 days of the determination.

Nathan Crisp (employee) applied to reopen an earlier Employment Relations Authority investigation and determination dated 3 April 2025, in which he had succeeded on an unjustified disadvantage claim but failed on a constructive dismissal claim. The key legal question was whether any of his five stated grounds met the threshold for reopening under Schedule 2, clause 4 of the Employment Relations Act 2000. The application was granted in part — only with respect to costs, which had not been reserved or addressed in the original determination — while all other grounds for reopening were dismissed.

Applicant: Nathan Crisp (employee)
Respondent: Malcove Distributors Limited (employer)

Applicant: Laura Trethewey, advocate
Respondent: Danny Gelb, advocate

Nathan Crisp was employed by Malcove Distributors Limited (MDL) as an operations coordinator. In the original determination dated 3 April 2025 ([2025] NZERA 191), the Authority upheld Mr Crisp's claim of unjustified disadvantage arising from MDL's restructuring process and awarded $7,000 compensation for hurt and humiliation, plus reimbursement of the filing fee; however, his claim of constructive and unjustified dismissal was unsuccessful. MDL had not paid the amounts ordered as at the date of this determination. Mr Crisp applied to reopen the investigation on five grounds: (1) errors in the determination of notice pay and wage arrears; (2) alleged failure to address Holidays Act 2003 breaches; (3) alleged failure to consider redeployment and advertised roles in the context of constructive dismissal; (4) alleged application of the incorrect legal test for constructive dismissal; and (5) the adequacy of the $7,000 compensation award. MDL opposed reopening, submitting the threshold had not been met and the application was an impermissible attempt to relitigate. The matter was determined on the papers following a case management conference.

1. Whether the threshold for reopening the investigation under Schedule 2, clause 4 of the Employment Relations Act 2000 is met — Status: Partially established (paras [7]-[18]).

The Authority applied the framework from the Employment Court, requiring the overriding consideration to be the interests of justice, including whether there is an actual or real and substantial risk of a miscarriage of justice (not merely a possibility), and confirming that rehearing jurisdiction is not to be exercised to re-agitate arguments already considered. Citing Young v Board of Trustees of Aorere College [2013] NZEmpC 111, Idea Services Ltd v Barker [2013] NZEmpC 24, and Davis v Commissioner of Police [2015] ERNZ 27, the Authority found that the threshold was met on the costs ground only, as costs had not been reserved or addressed in the original determination despite Mr Crisp being a successful represented party; all other grounds failed to establish a real or substantial risk of miscarriage of justice.

2. Ground 1 — Whether the original Member's error in recording "no evidence" of Mr Crisp seeking notice pay warranted reopening — Status: Dismissed (paras [8]-[9]).

The Authority acknowledged the Member had incorrectly recorded that there was no evidence of Mr Crisp querying notice pay (an email at page 58 of the Common Bundle contradicted this), but found the error was not fatal and did not lead to a miscarriage of justice. The determination of notice pay was one of contractual entitlement, and the Member's interpretation of clause 21 of the employment agreement — that Mr Crisp was not entitled to payment of one month's notice — was objectively and reasonably made and consistent with the contract terms.

3. Ground 2 — Whether the original determination failed to adequately address Holidays Act 2003 breaches — Status: Dismissed (paras [10]-[11]).

The Authority found there was sufficient engagement with this issue in the original determination: the Member identified holiday pay arrears as an issue for investigation and acknowledged a "payroll anomaly" that had been rectified by the company. The characterisation of the matter as an anomaly indicated the Member considered any statutory breach to be unintentional and at the lower end of the spectrum of seriousness. The mere possibility of a miscarriage of justice was insufficient to reopen this ground.

4. Ground 3 — Whether the original determination failed to consider redeployment and advertised roles in relation to the constructive dismissal claim — Status: Dismissed (para [12]).

The Authority found this ground was essentially a second attempt at Mr Crisp's unsuccessful constructive dismissal claim. The Member had considered and determined that constructive dismissal had not been established, and this ground amounted to an impermissible re-agitation of arguments already decided.

5. Ground 4 — Whether the original Member applied the incorrect legal test for constructive dismissal — Status: Dismissed (para [13]).

The Authority found this ground was without merit, noting the Member had explicitly footnoted the leading Court of Appeal authority on constructive dismissal — Auckland Shop Employees Union IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 — and referred to the three potential situations in which constructive dismissal could occur (pp 374–375). The Member had committed approximately 16% of the determination to this issue before concluding it was not established.

6. Ground 5 — Whether the $7,000 compensation award for hurt and humiliation was inadequate — Status: Dismissed (para [14]).

The Authority found the $7,000 award was well within the range for similar circumstances of disadvantage, taking into account that the award related to how MDL's restructuring process had disadvantaged Mr Crisp and ultimately led him to take sick leave. The Member's reference to "similar cases" reflected his knowledge of Authority awards in comparable circumstances.

7. Whether costs should be reopened and addressed — Status: Established (paras [15]-[16], [19]).

The Authority found that costs are ordinarily reserved at the conclusion of an investigation meeting, but this had not occurred in the original determination for reasons that were unclear. As Mr Crisp was represented and was the successful party on the unjustified disadvantage claim, the general principle that costs follow the event applied. The investigation was reopened solely to address costs.

8. Whether the Authority will consider a compliance order in respect of unpaid amounts from the original determination — Status: Conditional (para [18]).

The Authority noted the original monetary awards remained unpaid, described this as unsatisfactory, and indicated it would consider any application for a compliance order by Mr Crisp. No compliance order was made at this stage.

The application to reopen was partially upheld — granted solely on the issue of costs; all five substantive grounds for reopening were dismissed.

Costs: Reserved. The Authority indicated a starting point of $2,250 (one half of the notional tariff for a one-day investigation meeting), subject to upward or downward adjustment. No costs order has been made yet.
Compliance order: Not yet made; the Authority indicated it will consider any application by Mr Crisp for a compliance order regarding the unpaid amounts from the original determination ($7,000 compensation plus filing fee reimbursement).
No other remedies ordered in this determination.

Workers First Union Incorporated and the New Zealand Public Service Association (the unions) applied to the Employment Relations Authority under s 50B of the Employment Relations Act 2000 for urgent referral to facilitation in respect of their collective bargaining with IAG New Zealand Limited. The central legal question was whether one of the statutory grounds under s 50C(1) — specifically that bargaining had been unduly protracted and extensive efforts including mediation had failed — was made out. The Authority was satisfied the ground was established and ordered the parties to engage in facilitation.

Applicant: Workers First Union Incorporated (union) and New Zealand Public Service Association Te Pūkenga Here Tikanga Mahi Incorporated (union)
Respondent: IAG New Zealand Limited (employer)

Applicant: Grace Liu, counsel for the Applicants
Respondent: Kylie Dunn, advocate for the Respondent

WFU, the PSA, and IAG are parties to a collective agreement that expired on 31 March 2025. IAG initiated bargaining for a replacement collective agreement on 4 March 2025, with claims exchanged and a bargaining process agreement entered into in late November 2025. The parties attended multiple bargaining sessions from November 2025 onward, as well as two rounds of mediated bargaining in April and May 2026, but were unable to reach a new collective agreement. Significant difficulties arose regarding a proposed trial period and the coverage of the proposed collective agreement. The unions applied for urgent referral to facilitation under s 50B of the Act, relying solely on their statement of problem without affidavit evidence; IAG did not oppose the application and supported facilitation. All parties agreed the matter could be resolved on the papers without an in-person hearing or submissions.

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

The Authority must be satisfied that one of the statutory grounds under s 50C(1) of the Act is made out before accepting a reference to facilitation. The Authority applied the test from McCain Foods (NZ) Limited v Service & Food Workers Union Nga Ringa Tota Inc [2009], which held that "undue protraction" means excessive or disproportionate protraction as opposed to reasonable or expected protraction, and also that bargaining may be unduly protracted where strongly held positions have precluded settlement despite real attempts to bargain. The Authority further drew on Service & Food Workers Union Nga Ringa Tota Inc v Sanford Limited [2012], which held that the facilitation provisions should be interpreted to encourage and assist collective bargaining and timely settlement, and that the Authority should not be astute to find reasons to refuse referral where a commonsense assessment indicates its desirability. The Authority was satisfied that bargaining had been ongoing for approximately 15 months, extensive efforts including two mediations had failed, and the s 50C(1)(b) ground was made out.

2. Costs — Status: Not reached (para [25]).

The Authority noted that its presumption with referrals to facilitation, per the Authority's Practice Direction (February 2024), is that parties bear their own costs. No costs order was made and the matter was not further addressed.

The application for referral to facilitation was upheld in full; the parties are ordered to engage in facilitation.

Reinstatement: No.
Compensation: None ordered.
Facilitation order: The parties are ordered to engage in facilitation (to be conducted by a different Authority Member) to assist in reaching a settlement of their new collective agreement. A case management conference is to be convened as soon as possible to arrange urgent facilitation.
Costs: None ordered; each party to bear its own costs per the Authority's Practice Direction.

James Gates, a Traffic Controller (STMS) employed by Fulton Hogan Limited since March 2020, raised personal grievances of unjustified disadvantage and unjustified dismissal following two suspensions on full pay, a final written warning, and summary dismissal in August 2023, all arising from complaints of inappropriate sexual conduct made by co-workers. The key legal questions were whether each of Fulton Hogan's actions (suspensions, warning, and dismissal) met the justification standard under s 103A of the Employment Relations Act 2000, and whether the pay received during suspension was adequate. The Authority dismissed all of Mr Gates' claims, finding that Fulton Hogan acted as a fair and reasonable employer throughout, and that the dismissal was justified.

Applicant: James Gates (employee)
Respondent: Fulton Hogan Limited (employer)

Applicant: Anjela Sharma, advocate
Respondent: Kirsty McDonald and Bridget Craig, counsel

James Gates was employed full-time as a Traffic Controller (STMS) by Fulton Hogan in Nelson from March 2020, working under a collective agreement and company policies, and had no prior disciplinary history. In February 2023, multiple female co-workers made written complaints of inappropriate sexual conduct against him; he was suspended on full pay, an investigation was conducted by HR manager Nicole McBreen, and a final written warning was issued on 2 May 2023 following a disciplinary process. In late June 2023, a further complaint of sexual harassment was made by a younger co-worker (referred to as OTO); Mr Gates was again suspended on full pay, a second investigation was conducted by HR manager Tony McCabe, and he was summarily dismissed on 4 August 2023. Mr Gates raised personal grievances claiming the suspensions, investigation processes, warning, and dismissal were all unjustified, and also claimed he was not paid "full pay" during his suspensions (as overtime and shift loadings were excluded). Separately, evidence emerged that Mr Gates had commenced employment with a competitor before his dismissal took effect. A penalties claim for breach of good faith was withdrawn by Mr Gates during submissions.

1. Whether the personal grievance claims relating to the first suspension and the first investigation were raised in time — Status: Established as properly before the Authority (paras [131]-[133]).

Under s 114 of the Employment Relations Act 2000, a grievance must be raised within 90 days of the act alleged to cause it, unless the employer consents or leave is granted. Mr Gates raised his grievances about the first suspension and investigation on 28 July 2023, which was out of time relative to those events. However, Fulton Hogan responded substantively both before and after lodgement without raising a timeliness objection; the Authority found Fulton Hogan had impliedly consented to those claims being raised out of time, and treated them as properly before the Authority for determination.

2. Whether the first suspension (27 February 2023) was justified — Status: Established (paras [33]-[35], [134]-[135]).

The justification standard under s 103A requires assessment of whether the employer's actions and how it acted were what a fair and reasonable employer could have done in all the circumstances. The collective agreement permitted paid suspension where an employee was alleged to be guilty of serious misconduct; the allegations of inappropriate sexual conduct met that threshold. The Authority found that Fulton Hogan gave adequate notice of the proposed suspension, provided opportunity to respond at the 27 February meeting, and that Mr Gates agreed to the suspension. No substantive unfairness arose from the process, including the timing of notification or the absence of copies of all statements before the meeting. The first suspension was justified.

3. Whether Fulton Hogan paid "full pay" during the suspensions — Status: Dismissed (paras [136]-[144]).

Mr Gates argued he was not paid "full pay" because he was paid only his base 40-hour rate without overtime or shift loading, which he regularly earned. The Authority considered the collective agreement, which guaranteed 40 hours per week but gave no entitlement to overtime or discretionary shift work. Relying on Mr Stobie's evidence that overtime was offered based on business needs, not as an entitlement, the Authority found that Fulton Hogan was required to pay only 40 hours at the ordinary hourly rate while suspending on full pay. Idea Services v Dickson [2011] NZCA 14 was distinguished as inapplicable. Whether framed as a personal grievance under s 103(1)(b) or as a wages arrears claim, the claim for additional pay during suspension failed.

4. Whether the first investigation process was fair — Status: Established (finding in favour of Fulton Hogan) (paras [145]-[159]).

The Authority applied the s 103A framework, which requires sufficient investigation, raising of concerns, reasonable opportunity to respond, and genuine consideration of the employee's explanation. Mr Gates challenged the use of multiple actors in the investigation and disciplinary process, Ms McBreen's suitability as investigator, inadequate credibility resolution, and the treatment of a witness as a complainant. The Authority rejected all challenges: multiple actors with defined roles is not inherently unfair; Ms McBreen was independent and not disqualified by her earlier role in the suspension; she considered both supporting and contradictory evidence; and the "morphing" complainant's status was apparent to Mr Gates through the interview materials. Citing Whanganui College Board of Trustees v Lewis [2000] 1 ERNZ 397 at [20], the Authority held Fulton Hogan was entitled to prefer some accounts over others having taken a reasonable course. The investigation and reliance on the report were what a fair and reasonable employer could have done.

5. Whether the final written warning (2 May 2023) was justified — Status: Established (finding in favour of Fulton Hogan) (paras [145]-[159]).

The Authority found that Mr Stobie correctly set out the three substantiated allegations, met with Mr Gates, gave him a genuine opportunity to respond, considered his explanations (which were the same as those given during the investigation), and decided on a final written warning rather than dismissal given Mr Gates' positive work history and lack of prior discipline. The allegations of physical sexual conduct, displaying a photograph of his penis, and making inappropriate sexual innuendo were each found to have been substantiated through a process meeting the fair and reasonable employer standard. The warning was justified.

6. Whether the second suspension (27 June 2023) was justified — Status: Established (finding in favour of Fulton Hogan) (paras [160]-[163]).

The collective agreement again provided contractual authority for paid suspension upon allegations of serious misconduct. Following Sefo v Sealord Shellfish Ltd (2008) 5 NZELR 407 at [38], an employer must tell the employee of the possibility of suspension, the grounds, and offer an opportunity to persuade against it. The Authority found Fulton Hogan did precisely that on 26 June (alerting Mr Gates and scheduling the meeting) and 27 June (meeting with Mr Stobie at which Mr Gates agreed to the suspension). Mr Gates' argument that he had been suspended the day before and the second meeting was unnecessary was rejected based on contemporaneous documentary evidence. The second suspension was justified.

7. Whether the claim that Fulton Hogan failed to provide body cameras contributed to the second suspension and dismissal — Status: Dismissed (paras [73]-[74], [80]).

Mr Gates argued that Fulton Hogan's failure to supply him with a body camera after the first warning left him vulnerable to false allegations. The Authority found that Fulton Hogan trialled body cameras only for protection from motorists, not to monitor employee interactions, and that use for the latter purpose would raise additional issues. Critically, the second complaint was not a false complaint, and Fulton Hogan's rostering and equipment decisions did not cause the second suspension or dismissal. The claim had no merit.

8. Whether the second investigation process was fair — Status: Established (finding in favour of Fulton Hogan) (paras [165]-[170]).

Mr Gates argued the second investigation failed to resolve inconsistencies, relied on mixed evidential material, was biased, and failed to engage with issues he raised. The Authority found that Mr McCabe conducted a thorough investigation: he found OTO credible, corroborated by contemporaneous messages; he investigated Mr Gates' set-up theory and found no evidence; and he dealt with all issues raised by Mr Gates and his lawyer. Mr McCabe's earlier involvement in the suspension did not disqualify him. His conclusions and reasoning met the fair and reasonable employer standard under s 103A.

9. Whether the dismissal on 4 August 2023 was justified — Status: Established (finding in favour of Fulton Hogan) (paras [164]-[174]).

Mr Stobie relied on Mr McCabe's report, raised concerns with Mr Gates, gave him a reasonable opportunity to respond through his lawyer, genuinely considered his explanations, and then dismissed him summarily. The Authority found the conduct towards OTO (unwelcome touching, tying her shoe-laces without invitation, use of terms of endearment) constituted sexual harassment under Fulton Hogan's code of conduct and, taken together with the recent final written warning, amounted to serious misconduct. The submission that the dismissal was invalid because the final warning was "unsafe" was rejected as the warning had been found justified. The dismissal was justified.

10. Whether Mr Gates was awarded any remedy for loss of alleged promotion opportunity — Status: Dismissed (para [20]).

The Authority found that evidence did not establish that Fulton Hogan had offered, and Mr Gates had accepted, a promotion. Accordingly, any remedies (had they been ordered) would have been assessed on his actual agreed terms and conditions, without reference to a possible promotion. The point was moot given the overall dismissal of all claims.

11. Whether Fulton Hogan should be penalised for breaches of the duty of good faith — Status: Not reached (para [5]).

Mr Gates originally sought penalties against Fulton Hogan for alleged breaches of the duty of good faith. He withdrew this claim during submissions, so the Authority did not address it.

12. Non-publication orders for complainants/witnesses — Status: Established (paras [7]-[9]).

The Authority made a non-publication order prohibiting publication of the names and images of Fulton Hogan employees interviewed as complainants or witnesses during the two investigations. The complainants and witnesses are not parties to the proceedings; there is no public interest in their identification and a risk of harm if identified. A separate application for non-publication of specific evidence given by a witness was declined as unnecessary, as that evidence was not referred to in the determination and no publication risk had been identified.

The claim was dismissed in full; Fulton Hogan's suspensions, final written warning, and summary dismissal were all found to be justified, and Mr Gates has no personal grievance against Fulton Hogan.

None ordered. Costs are reserved; Fulton Hogan may lodge a costs memorandum within 28 days of the determination, and Mr Gates will then have 14 days from service to respond.

Jaspreet Kaur, a Kitchen Hand employed by Patel Catering Limited (In Liquidation), brought claims against her employer and its director (Chaitali Patel) and another individual (Nikunj Patel) for unpaid wages, various employment entitlements, and an unlawful employment premium of $25,000 charged to her as a condition of employment. The key legal questions were whether monies were owed for wage arrears and other entitlements, whether an unlawful premium was sought and received, and whether the individual respondents could be held personally liable for the employer's breaches. The claims were substantially upheld: Patel Catering and Chaitali Patel were found jointly and severally liable for the wage and premium claims, and Chaitali Patel was ordered to pay a penalty of $4,000; Nikunj Patel was absolved of liability.

Applicant: Jaspreet Kaur (employee)
Respondent: Patel Catering Limited (In Liquidation) (First Respondent/employer); Chaitali Patel (Second Respondent/sole director and shareholder); Nikunj Patel (Third Respondent)

Applicant: Susanne Lass, advocate/counsel for the Applicant
Respondent: No appearance

Ms Kaur arrived in New Zealand in August 2023 on a visitor's visa and applied for a Kitchen Hand role with Patel Catering Limited. The respondents agreed to employ her and obtain an Accredited Employer Work Visa, but demanded a payment of $25,000 as a condition of doing so, evidenced by a WhatsApp message from Chaitali Patel. Ms Kaur paid approximately $28,527 in total by cash, bank transfer, and credit card. Her employment agreement, signed in January 2024, provided for 30 guaranteed hours per week at $29.70 per hour, but Ms Kaur was consistently underpaid — the respondents used a lower hourly rate, recorded unpaid leave she had not agreed to, and at times directed her to return wages in cash. Ms Kaur was dismissed on 19 February 2025 without the contractual two weeks' notice, and Patel Catering entered liquidation on 21 July 2025. The respondents filed no Statement in Reply, provided no wages or time records, and their requests for adjournment were declined; only the applicant presented evidence at the investigation meeting.

1. Whether Ms Kaur is owed wage arrears — Status: Established (paras [33]-[35], [44]).

The Employment Agreement guaranteed a minimum of 30 hours per week at $29.70 per hour. Ms Kaur gave evidence, supported by payslips, bank statements and IRD records, that she was not paid for all hours worked, that a lower hourly rate was used, and that unpaid leave was recorded without her agreement. Under s 132 of the Employment Relations Act 2000 (the Act), the Authority drew adverse inferences from the respondents' failure to provide wages and time records. The Authority accepted Ms Kaur's detailed calculation and found wage arrears were owed as part of the composite sum of $19,397.29 gross.

2. Whether Ms Kaur is owed sick leave entitlement — Status: Established (paras [36]-[37], [44]).

Ms Kaur was absent due to illness from 27 January 2025 and provided medical evidence. She claimed 10 days' sick leave calculated at the contractual minimum of 30 hours per week at $29.70, equating to $1,782.00 gross. The Authority accepted this entitlement as part of the composite award of $19,397.29 gross.

3. Whether Ms Kaur is owed payment in lieu of notice — Status: Established (paras [38], [44]).

The Employment Agreement provided for two weeks' notice, which was not given upon dismissal on 19 February 2025. The contractual notice entitlement was calculated at $1,782.00 gross. The Authority included this in the composite award.

4. Whether Ms Kaur is owed public holiday entitlements — Status: Established (paras [39]-[41], [44]).

Under the Holidays Act 2003, an employee who works on a public holiday is entitled to payment at not less than time and a half, plus a day in lieu if the day would otherwise have been a working day. Ms Kaur was paid only $14.85 per hour for Matariki (half her contractual rate) and worked one hour on 1 January 2025 without proper payment. The Authority awarded $114.35 plus $178.20 in public holiday entitlements as part of the composite award.

5. Whether Ms Kaur is owed holiday pay — Status: Established (paras [42]-[44]).

Taking into account all wages and entitlements that should have been paid, accrued holiday pay was calculated at $3,587.59 gross. The Authority accepted this figure as part of the composite award of $19,397.29 gross.

6. Whether the respondents breached s 12A of the Wages Protection Act 1983 by seeking and receiving an unlawful employment premium — Status: Established (paras [50]-[58]).

Section 12A(1) of the Wages Protection Act 1983 (WPA) prohibits an employer from seeking or receiving any premium in respect of employment. Ms Kaur's evidence was that she paid approximately $28,527 in total, with the WhatsApp message of 7 December 2023 from Ms Patel directly evidencing a demand for $25,000. The Authority found the $25,000 demand and receipt proven. The additional $3,527.65 credit card payment was not supported by evidence of a further demand and was not awarded. The Authority ordered recovery of $25,000 as a debt under s 12A(2) of the WPA.

7. Whether interest is payable on the amounts owed — Status: Established (paras [45]-[49]).

Interest is payable in accordance with Schedule 2 of the Interest on Money Claims Act 2016 to reimburse Ms Kaur for the loss of use of monies to which she had established entitlement. The Authority ordered interest on all amounts from the date of dismissal (19 February 2025) until paid in full.

8. Whether Chaitali Patel (Second Respondent) is personally liable for the employer's breaches of minimum employment standards — Status: Established (paras [59]-[64]).

Under s 142W of the Act, a person is involved in a breach if they have been knowingly concerned in or party to a breach of employment standards. Under s 142Y(2)(b), such a person may be ordered to meet the remedies to the extent the employer is unable to pay. The Authority found that Ms Patel, as sole director and shareholder, was knowingly concerned in all breaches of minimum employment standards and in the failure to pay entitlements correctly. Because Patel Catering is in liquidation and unable to pay, the Authority ordered Patel Catering and Ms Patel to be jointly and severally liable for all awarded sums including interest.

9. Whether Nikunj Patel (Third Respondent) is personally liable for the employer's breaches — Status: Dismissed (paras [63], [70]).

There was insufficient evidence that Nikunj Patel was a director or was knowingly concerned in the breaches of minimum employment standards. The Authority therefore declined to hold him personally liable and made no orders against him.

10. Whether a penalty should be imposed for breaches of the Employment Agreement and, if so, in what amount — Status: Established (paras [65]-[73]).

Under s 133A of the Act and the principles from Borsboom v Preet PVT Limited and Warrington Discount Tobacco Limited [2016] NZEmpC 143, penalties are punitive in nature and must reflect the seriousness of the breach, not compensate the applicant. The Authority found multiple identified breaches by Ms Patel as sole director: failing to pay wages when due, failing to pay contractual minimum hours, recording unpaid leave without agreement, failing to pay notice pay, and failing to provide records. The Authority imposed a penalty of $4,000 on Ms Patel personally, payable to the Crown Bank Account.

11. Whether any part of the penalty should be paid to Ms Kaur — Status: Dismissed (para [74]).

The Authority noted that Ms Kaur's losses had been recognised and compensated through the remedies ordered. As the purpose of penalties is deterrence and punishment rather than compensation, no part of the $4,000 penalty was directed to Ms Kaur.

12. Whether Ms Kaur is entitled to recovery of the filing fee — Status: Established (para [75]).

The Authority ordered Ms Patel to pay Ms Kaur the filing fee of $71.55.

13. Costs — Status: Not reached (paras [76]-[78]).

Costs were reserved pending negotiation between the parties. A timetable was set for costs memoranda if the parties could not agree: Ms Kaur may lodge a memorandum within 28 days; Ms Patel may reply within 14 days of service.

The claims were substantially upheld: wage and entitlement arrears, the unlawful employment premium, interest, a penalty against Chaitali Patel, and the filing fee were all ordered; the claim against Nikunj Patel was dismissed; costs were reserved.

- Wage arrears, sick leave, unpaid notice, public holiday entitlements, and holiday pay (composite): $19,397.29 gross (Patel Catering, with Ms Patel jointly and severally liable to the extent Patel Catering is unable to pay).
- Employment premium (s 12A WPA): $25,000.00 (same liability structure as above).
- Interest: on all amounts ordered from 19 February 2025 until paid in full, calculated per Schedule 2 of the Interest on Money Claims Act 2016.
- Filing fee reimbursement: $71.55 (payable by Ms Patel to Ms Kaur).
- Penalty: $4,000.00 payable by Ms Patel to Crown Bank Account (no portion to Ms Kaur).
- All payments due within 28 days of the determination date.
- Costs: Reserved.

The Chief Executive of Oranga Tamariki – Ministry for Children applied to remove an Authority proceeding (personal grievances brought by employee Dahlea Reisima) to the Employment Court, on the basis that the Court already had before it related proceedings between the same parties arising from an earlier Authority determination. The key legal questions were whether the grounds for removal under s 178(2)(c) and/or (d) of the Employment Relations Act 2000 were satisfied. The Authority granted removal, finding sufficient overlap in issues, evidence, and parties to justify the matter being determined by the Employment Court.

Applicant: The Chief Executive of Oranga Tamariki – Ministry for Children (employer)
Respondent: Dahlea Reisima (employee)

Applicant: Hamish Kynaston, Louise Robertson and Josephine Ripley, counsel for the applicant
Respondent: Allan Halse, advocate for the respondent

Dahlea Reisima was employed at a youth justice residence operated by Oranga Tamariki. An earlier Authority proceeding resulted in a 2024 determination (file 3203959) in which one unjustified disadvantage grievance was upheld and the rest dismissed. Ms Reisima challenged that determination to the Employment Court (a non-de novo challenge), and a directions conference was held in April 2026. Ms Reisima also lodged a new Authority application (file 3427904) raising a further chain of personal grievances, including matters relating to protected disclosures under the Protected Disclosures (Protection of Whistleblowers) Act 2022 and return-to-work plans, involving different Oranga Tamariki staff. Oranga Tamariki applied to remove the new Authority proceeding to the Employment Court, arguing there were same or similar or related issues between the two proceedings. Ms Reisima opposed removal, contending the two proceedings involved different events, different timeframes, and different staff, and that she would be disadvantaged by losing access to the Authority's informal and cost-effective process.

1. Whether removal to the Employment Court was warranted under s 178(2)(c) of the Act (Court already has before it proceedings between the same parties involving the same or similar or related issues) — Status: Established (paras [9], [15]-[18], [30]-[43]).

The test under s 178(2)(c) requires that the Court already have proceedings between the same parties involving the same, similar, or related issues; a holistic consideration of subject matter and factual connection is sufficient, and issues need not be identical (citing Randwick Meat Co Ltd v Burns [2015] NZEmpC 188 at [27]; Flight Attendants and Related Services (NZ) Association Inc v Air New Zealand [2013] NZEmpC 125 at [42]; Sheath v The Selwyn Foundation [2015] NZEmpC 226 at [11]). The Authority found that while the two proceedings concerned different chains of events, Ms Reisima's own statement of problem expressly tied the two chains together — describing a continuous pattern of conduct, shared managers, and overlapping subject matter including allegations of theft, abuse, bullying by the residence management team, return-to-work history, and retaliatory conduct. At least three witnesses likely to give evidence in the Court were also named in the current proceeding. The Authority concluded there were similar or related issues and a strong argument for evidentiary overlap, satisfying s 178(2)(c).

2. Whether removal to the Employment Court was warranted under s 178(2)(d) of the Act (in all the circumstances, the Court should determine the matter) — Status: Established (paras [10], [20], [39]-[43]).

Section 178(2)(d) gives the Authority a broader discretion to order removal if it is of the opinion that, in all the circumstances, the Court should determine the matter. The Authority found that the continuing themes in Ms Reisima's employer's conduct across both chains of grievances could more readily be considered by a single decision-making body examining the full period. It was more efficient use of judicial resources and less burdensome on parties and witnesses for one institution to conduct one hearing rather than two hearings in two different institutions. The Authority was satisfied there was a sound basis for removal under this ground as well.

3. Whether factors favouring retention in the Authority (informality, cost, loss of challenge right, mediation opportunity) outweighed the case for removal — Status: Dismissed (paras [37]-[38]).

Ms Reisima argued that removal would deprive her of the Authority's informal and cost-effective process, the right to challenge an Authority determination to the Court, and the opportunity for mediated settlement via an Authority direction (citing Dollar King v Jun [2020] NZEmpC 91). The Authority acknowledged these as factors to balance against removal but found them insufficient to justify retaining the matter: Ms Reisima was already committed to a Court process in the challenge proceedings, and the Court also has power to direct mediation under s 188(2) of the Act.

4. Whether removal was warranted under s 178(2)(a) or (b) of the Act — Status: Not reached (para [28]).

Ms Reisima referred to s 178(2)(a) and (b) grounds (important questions of law or matters of such nature and urgency as to be in the public interest) in the context of suggesting the Authority should be reluctant to remove matters not meeting those criteria. The Authority resolved the application on ss 178(2)(c) and (d) and did not need to separately analyse ss 178(2)(a) and (b).

5. Whether a non-publication order should be made — Status: Not reached (paras [5]-[6]).

Ms Reisima's representative raised the possibility of a non-publication order in the context of the Protected Disclosures (Protection of Whistleblowers) Act 2022. The Authority set a deadline for any such application, but no application was received, so the Authority proceeded without a non-publication order. The issue was not substantively determined.

6. Whether Ms Reisima had a potential retaliation grievance under s 103(1)(k) of the Act arising from Oranga Tamariki's removal application — Status: Not reached (para [5]).

Ms Reisima's representative raised the possibility of a retaliation grievance in connection with the removal application. The Authority noted this was not before it in the current proceeding and no amended statement of problem had been lodged in file 3427904 to that effect.

The application for removal was upheld in full; the proceedings in file 3427904 are to be removed to the Employment Court.

None ordered (this was a procedural removal application; the substantive personal grievances in file 3427904 have not been investigated and remain to be determined by the Employment Court).

A Labour Inspector brought proceedings in the Employment Relations Authority against Bottle Box Holdings Limited (BBH) and its sole director Manpreet Singh, alleging failures to supply and maintain wages, time, holiday, and leave records for seven employees, in breach of the Employment Relations Act 2000 and the Holidays Act 2003. The central question was whether the Authority's proceedings should be removed to the Employment Court, where related proceedings between the same parties were already on foot. The Authority granted the removal application, ordering the matter transferred to the Employment Court.

Applicant: A Labour Inspector of the Ministry of Business, Innovation and Employment
Respondent: Bottle Box Holdings Limited (First Respondent, employer); Manpreet Singh (Second Respondent, sole director of BBH)

Applicant: Michelle Brown, counsel for the Applicant
Respondent: Manpreet Singh for the Respondents

BBH operated as an employer during the period September 2023 to April 2025, during which time it allegedly failed to supply and maintain wages, time, holiday, and leave records for seven employees. On 22 December 2025, the Labour Inspector lodged an application in the Authority alleging breaches of ss 229, 232, and 130 of the Employment Relations Act 2000, and s 75 of the Holidays Act 2003, and sought penalties against both BBH and Mr Singh personally. Concurrently, the Labour Inspector had filed separate proceedings in the Employment Court under Part 9A of the Act, seeking declarations of breach, pecuniary penalties for serious breaches of minimum entitlement provisions, compensation orders, and banning orders in relation to the same employees and the same alleged employment practices. Despite being given multiple opportunities — including leave to file statements of reply in the Authority and statements of defence in the Court — neither BBH nor Mr Singh filed any documents or submissions. The Labour Inspector applied for the Authority's proceedings to be removed to the Employment Court on the grounds that the same parties and issues were already before the Court, and that parallel proceedings would result in duplication of evidence and factual findings.

1. Whether the Authority's proceedings should be removed to the Employment Court under s 178(2) of the Employment Relations Act 2000 — Status: Established (paras [14]-[24]).

The Authority's power to remove proceedings to the Employment Court arises under s 178(2) of the Act. The Labour Inspector submitted two grounds: (a) the Court already had proceedings on foot between the same parties involving the same or similar or related issues; and (b) in all the circumstances the matter should be determined by the Court, per s 178(2)(d). The Authority found that the Employment Court proceedings concerned the same group of employees, the same period of alleged conduct (September 2023 to April 2025), and the same alleged breaches of the Minimum Wage Act 1983, Wages Protection Act 1983, and Holidays Act 2003. The Authority was satisfied both grounds were made out: the Court would need to make findings on hours worked, payments made, and records kept by BBH in any event, and duplication of evidence and factual findings would result if both forums proceeded in parallel. Accordingly, the Authority exercised its discretion and ordered removal.

2. Whether penalties should be imposed on BBH under ss 229(3), 232(4), and 130(4) of the Employment Relations Act 2000 and s 75 of the Holidays Act 2003 for alleged record-keeping failures — Status: Not reached (paras [1]-[5], [24]).

The Labour Inspector sought penalties against BBH for failing to supply wages and time records and holiday and leave records, and for failing to maintain compliant records. Because the Authority ordered removal of the matter to the Employment Court, it did not determine the merits of the penalty claims, which will be resolved in the Court proceedings.

3. Whether penalties should be imposed on Manpreet Singh personally under ss 130(4) and 142(x) of the Act and s 75 of the Holidays Act 2003 as a person involved in BBH's alleged breaches — Status: Not reached (paras [4], [24]).

The Labour Inspector alleged Mr Singh, as sole director of BBH, was personally involved in the record-keeping breaches and sought penalties against him individually. As with the penalty claims against BBH, this issue was not determined by the Authority and will be dealt with in the Employment Court proceedings following removal.

4. Costs — Status: Reserved (para [25]).

The Authority reserved costs without providing reasons, leaving the matter to be addressed at a later stage.

The removal application was upheld; the Authority's proceedings (matter 3433564) were ordered removed to the Employment Court. The merits of the penalty claims against BBH and Mr Singh were not determined.

None ordered at this stage. The matter has been removed to the Employment Court for substantive determination. Costs are reserved.

A Labour Inspector brought enforcement proceedings against The Indian Taste Limited (a restaurant business) and its former sole director and shareholder Krishna Khandelwal for serious and systemic breaches of multiple employment standards affecting seven migrant worker employees. The key legal questions were whether the breaches were established, whether Mr Khandelwal was personally liable as a "person involved" in those breaches, and what penalties should be imposed. The Authority found all breaches established, held Mr Khandelwal personally liable on a contingent basis, and imposed total arrears orders of $199,529.15 plus interest, and penalties of $177,300.00 against Mr Khandelwal.

Applicant: A Labour Inspector (Labour Inspectorate, Ministry of Business, Innovation and Employment)
Respondent: The Indian Taste Limited (First Respondent, employer/restaurant business) and Krishna Khandelwal (Second Respondent, sole director and shareholder)

Applicant: Greg La Hood, counsel for the Applicant
Respondent: No appearance for the First Respondent; No appearance for the Second Respondent

The Indian Taste Limited operated a restaurant business in Auckland, with Krishna Khandelwal as its sole director and shareholder during the relevant period. Between March and December 2024 the Labour Inspectorate received multiple complaints from employees alleging serious minimum employment standards breaches, prompting an investigation commencing in March 2024 and resulting in an Investigation Report dated 9 January 2025. The business was sold to a third party (Mehakjeet Singh) on 17 April 2024, though Mr Singh indicated he was in the process of returning the business to Mr Khandelwal. Seven migrant employees were affected; they reported working 60–90 hours per week while being paid for only 30–33 hours, being required to pay significant sums as purported immigration or job-security fees, and experiencing coercive and intimidating conduct by Mr Khandelwal, including visa-related threats. Mr Khandelwal denied liability throughout, filed a statement in reply contesting the Investigation Report, appeared at the Authority's premises on the first morning of the five-day Investigation Meeting but then emailed to say he was unwell and would not attend; he failed to provide sworn evidence and the Authority proceeded by formal proof. The Labour Inspector sought arrears totalling $199,529.15 across seven employees, interest thereon, and penalties against Mr Khandelwal personally.

1. Whether the Authority should proceed by formal proof in the absence of the respondents — Status: Established (paras [12]-[21]).

The Authority was satisfied that Mr Khandelwal had sufficient opportunity to participate in the Investigation Meeting. He appeared at the Authority's premises on the morning of 16 March 2026 but sent an email approximately 25 minutes before the meeting was due to commence claiming illness and declining to attend. The Authority warned him the meeting might proceed in his absence. The First and Second Respondents failed to lodge submissions when given the opportunity. The Authority proceeded by formal proof under s 174E of the ER Act, treating unsworn witness statements from Mr Khandelwal, Amit Sharma, and Sharad Khandelwal as carrying no weight.

2. Whether The Indian Taste Limited breached s 6 of the Minimum Wage Act 1983 by failing to pay the adult minimum wage — Status: Established (paras [29]-[30]).

The applicable minimum wage was $22.70 per hour. Evidence from the Labour Inspector, including employee rosters and records, demonstrated that employees were not paid the minimum wage for all hours worked. Total minimum wage arrears were calculated at $82,522.83 across four affected complainants.

3. Whether The Indian Taste Limited breached s 4 of the Wages Protection Act 1983 by making unlawful deductions (underpayment of contractual entitlements) — Status: Established (paras [31]-[33]).

The Labour Inspector calculated the difference between amounts paid and the contractual hourly rate of $29.66, characterising the shortfall as unlawful deductions from wages due under the employment agreements. The Court of Appeal in Spotless Services (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2008] NZCA 580 confirmed that unpaid wages owed under an employment agreement are recoverable as unlawful deductions under ss 4 and 11 of the WPA. Total deduction arrears were $26,588.97.

4. Whether The Indian Taste Limited breached s 130 of the Employment Relations Act 2000 by failing to keep accurate wage and time records — Status: Established (paras [34]-[36]).

Section 130 of the ER Act requires every employer to keep a written wage and time record showing hours worked each day and pay for those hours; s 4B imposes a general record-keeping obligation to demonstrate compliance with minimum entitlements. The Authority found that rosters provided by The Indian Taste were unreliable and inconsistent with other evidence of hours actually worked, and that wages and time records were inaccurate or incomplete.

5. Whether The Indian Taste Limited breached s 81 of the Holidays Act 2003 by failing to keep accurate holiday and leave records — Status: Established (para [7](c)).

The Authority accepted the Labour Inspector's finding that The Indian Taste failed to maintain accurate records of public holidays, alternative holidays, and final holiday pay amounts as required by s 81 of the HA. This was confirmed as part of the record-keeping breach group addressed in the penalty analysis.

6. Whether The Indian Taste Limited breached ss 50, 56 and 60 of the Holidays Act 2003 by failing to pay employees correctly for working on public holidays — Status: Established (paras [37]-[38]).

Employees who worked on public holidays were not paid time-and-a-half and did not receive alternative holiday entitlements when the worked public holiday was an otherwise working day, in breach of the statutory obligations under the HA. Total public holiday arrears claimed were $11,960.37 (worked public holidays) and $7,923.56 (alternative holidays).

7. Whether The Indian Taste Limited breached ss 23 and 27 of the Holidays Act 2003 by failing to pay correct final holiday pay in a timely manner — Status: Established (para [7](g), paras [38]-[39]).

Final holiday pay was incorrectly calculated and paid late, in breach of ss 23 and 27 of the HA. Total final holiday pay arrears were $10,287.79.

8. Whether The Indian Taste Limited breached s 12A of the Wages Protection Act 1983 by charging unlawful premiums — Status: Established (paras [40]-[42]).

Employers are prohibited from seeking or receiving a premium in respect of employment. Mr Khandelwal required employees to pay what he described as non-refundable immigration fees and job security money, directing payments to various bank accounts. The Labour Inspector assessed the individual circumstances of each payment and calculated total unlawful premiums of $60,245.63.

9. Whether The Indian Taste Limited breached s 65 of the Employment Relations Act 2000 by failing to include an accurate description of work in an individual employment agreement — Status: Established (para [7](a)).

Pritam Halder's employment agreement described him as a kitchen hand when he was in fact a kitchen manager; the job description did not reflect the reality of his work. This was accepted as a breach of s 65 of the ER Act.

10. Whether Krishna Khandelwal was a "person involved" in the breaches of employment standards under s 142W of the Employment Relations Act 2000 — Status: Established (paras [50]-[53]).

Section 142W provides that a person is involved in a breach of employment standards if they were in any way, directly or indirectly, knowingly concerned in or party to the breach; where the breach is by a company, a director may be treated as a person involved. Mr Khandelwal was the sole director and shareholder of The Indian Taste during the relevant period, was involved in recruitment, operations, general business activities, and was primarily responsible for finance and administration. The Authority found he was a person involved in all the established breaches.

11. Whether Mr Khandelwal should be made personally liable for arrears under s 142Y and related provisions (s 11AA MWA; s 77A HA) — Status: Established (conditionally) (paras [54], [96](ii)).

Under s 142Y of the ER Act, a person involved in a breach may be made liable for outstanding arrears if the employer company is unable to pay. The Authority found that liability could attach to Mr Khandelwal in the event The Indian Taste is unable to satisfy the arrears orders, and granted leave for the Inspector to seek personal recovery from him on that contingency. The primary arrears orders were made against The Indian Taste Limited.

12. Whether penalties should be imposed on Mr Khandelwal under s 142X of the Employment Relations Act 2000, and if so, the quantum — Status: Established (paras [55]-[95]).

No penalties were sought against The Indian Taste because all identified breaches occurred exclusively under Mr Khandelwal's direction. The Authority applied the four-step penalty framework from Borsboom (Labour Inspector) v Preet PVT Ltd [2018] NZEmpC 110, together with the mandatory considerations in s 133A of the ER Act, and the additional considerations identified in that case. Step 1 identified 27 penalisable breach instances across five categories with a total maximum of $270,000. Step 2 applied severity percentages (80%–90% for most categories) to yield $197,000. Steps 3 and 4 yielded no discounts (no financial information provided; denial of responsibility throughout). For Step 5 proportionality, the Labour Inspector proposed a 15% reduction; however, the Authority reduced this to 10% given the quantum of unlawfully withheld wages and the deplorable nature of Mr Khandelwal's conduct. The resulting penalty is $177,300.00. References were also made to A Labour Inspector v Prabh Ltd [2018] NZEmpC 110, A Labour Inspector v Daleson Investment Ltd [2019] NZEmpC 12, A Labour Inspector & Ors v Pegasus Energy Limited and Anor [2018] NZERA 26, A Labour Inspector v Happytime BBQ Restaurant Limited and Anor [2023] NZERA 20, A Labour Inspector v 2 Cheap Cars Limited [2017] NZERA 270, and Rural Practice Ltd v Labour Inspector [2025] NZEmpC 198.

13. Whether penalties should be imposed on The Indian Taste Limited — Status: Dismissed (paras [10], [55]).

The Labour Inspector did not seek penalties against The Indian Taste on the basis that all identified breaches occurred exclusively under Mr Khandelwal's direction. No penalties were therefore ordered against the First Respondent.

14. Whether interest should be ordered on arrears — Status: Established (para [96](iii)).

Interest was ordered on the total arrears of $199,529.15 from 3 March 2025 (the date the Inspector's statement of problem was lodged) until payment in full, pursuant to Schedule 2, clause 11 of the ER Act, to be calculated using the civil debt interest calculator at www.justice.govt.nz.

15. Costs — Status: Reserved (paras [97]-[99]).

Costs were reserved, with the parties encouraged to resolve costs between themselves. If unresolved, the Labour Inspector may lodge a memorandum on costs within 28 days of the determination; respondents then have 14 days to reply. The Authority indicated costs would ordinarily be assessed on its usual notional daily rate.

The claims were upheld: all employment standards breaches were established, Mr Khandelwal was found to be a person involved in the breaches, arrears orders totalling $199,529.15 plus interest were made against The Indian Taste Limited (with contingent personal liability for Mr Khandelwal), and penalties of $177,300.00 were imposed on Mr Khandelwal personally.

Arrears (ordered against The Indian Taste Limited within 20 days):
- Ajay Kumar: $29,598.69 (gross wage arrears) + $15,819.76 (premium reimbursement) = $45,418.45
- Ajay Bhandari: $38,904.14 (gross wage arrears) + $11,365.87 (premium reimbursement) = $50,270.01
- Pushpinder Kumar: $33,052.84 (gross wage arrears) + $6,885.00 (premium reimbursement) = $39,937.84
- Pritam Halder: $37,727.85 (gross, all categories)
- Anil Gairola: $14,400.00 (premium reimbursement)
- Deepak Singh: $4,200.00 (premium reimbursement)
- Arvind Bartwal: $7,575.00 (premium reimbursement)
- Total arrears: $199,529.15

Contingent personal liability: Leave granted for the Inspector to seek recovery from Mr Khandelwal personally under s 142Y of the ER Act if The Indian Taste is unable to pay.

Interest: On $199,529.15 from 3 March 2025 until arrears paid in full (pursuant to Schedule 2, cl 11 of the ER Act).

Penalties (against Mr Khandelwal, within 20 days): $177,300.00 total
- $142,300.00 to the Crown via MBIE
- $35,000.00 to be divided equally among the seven complainants ($5,000 each)

Costs: Reserved.

Dr Rachelle Williamson, a consultant specialist anaesthetist employed by Health New Zealand Te Whatu Ora (HNZ) since 2004, was dismissed on 3 March 2026 following a lengthy investigation into her unauthorised access of patient records. She applied for interim reinstatement pending resolution of her personal grievance claims of unjustified disadvantage and unjustified dismissal. The Authority found she had a seriously arguable case of unjustified dismissal but only a weakly arguable case for permanent reinstatement due to the effect of recent statutory amendments (ss 123B and 123C of the Employment Relations Act 2000), and declined interim reinstatement on the overall justice assessment.

Applicant: Rachelle Jenny Williamson (employee — consultant specialist anaesthetist)
Respondent: Health New Zealand Te Whatu Ora (employer)

Applicant: Anthony Drake and Jared Higby, counsel for the Applicant
Respondent: Shaun Brookes and Michael Henderson-Rauter, counsel for the Respondent

Dr Williamson had been employed by HNZ and its predecessors since 2004 and appointed as a consultant specialist anaesthetist in December 2011. In October 2024, HNZ received a complaint alleging she had accessed patient records without clinical justification — including records of a person connected to her father's estate litigation, her brother's records, her own records, and approximately 52 other patient files — and had used that access to visit a patient in hospital. HNZ conducted an investigation from November 2024 through to March 2026, during which Dr Williamson acknowledged much of the conduct, attributed it to extreme personal stress from family litigation, and apologised. HNZ's final decision to dismiss Dr Williamson on notice was issued on 3 March 2026, to take effect 3 June 2026. Dr Williamson went on medical leave after receiving the first letter from HNZ and was not at work during her notice period; she had sought to agree a return-to-work plan but HNZ did not engage with that. The parties attended mediation without resolution, and Dr Williamson applied for interim reinstatement pending a substantive hearing of her personal grievances.

1. Whether the Authority should grant urgency to the interim reinstatement application — Status: Established (paras [8]).

The Authority applied its standard approach to urgency for interim reinstatement applications and found no sufficient reason to depart from it. Urgency was assigned notwithstanding HNZ's opposition, consistent with standard practice in such matters.

2. Whether the law applicable to remedies (including the recent amendments via ss 123B and 123C) is determined by the date of dismissal or the date of the underlying conduct — Status: Established (paras [52]-[54]).

Dr Williamson argued that because her conduct and HNZ's investigation predated the amendments (in force from 21 February 2026), the amended provisions should not apply. The Authority applied the principles in Ramkissoon v Commissioner of Police [2018] NZCA 304 and Allen v C3 Ltd [2012] NZEmpC 124, concluding that the personal grievance and the right to claim reinstatement arose at the time of dismissal (3 March 2026), which was after the amendments came into force. Accordingly, ss 123B and 123C must be considered.

3. Whether Dr Williamson has a seriously arguable case that her dismissal was unjustified — Status: Established (paras [43]-[51]).

The test requires assessing whether HNZ's actions were what a fair and reasonable employer could have done in all the circumstances (s 103A of the Employment Relations Act 2000). The Authority found it arguable that Dr Williamson's conduct was less serious than in Shaw v Bay of Plenty District Health Board [2022] NZEmpC 10, noting her acknowledgement, her personal circumstances, and her lengthy record. It found serious arguability in several procedural defects: HNZ's significant delays in completing the process, failure to provide a transcript of the investigation meeting, arguably inadequate responses to information requests about comparable cases (with disparity of treatment being a recognised grievance basis), arguably insufficient basis for Mr Hood's conclusions about lack of contrition and irrecoverable trust and confidence, possible reliance on undisclosed material, and characterisation of Dr Williamson's conduct as "use of private information for personal gain" — a more serious concern that had apparently never been put to her. The Authority concluded Dr Williamson has a seriously arguable case of unjustified dismissal.

4. Whether Dr Williamson has a seriously arguable case for permanent reinstatement, having regard to ss 123C and 125 of the Employment Relations Act 2000 — Status: Dismissed (weakly arguable only) (paras [55]-[65]).

Section 125 requires reinstatement wherever practicable and reasonable as the primary remedy; however, s 123C (in force from 21 February 2026) bars reinstatement where the employee's actions contributed to the situation giving rise to the grievance. The Authority interpreted "contributed" consistently with its meaning in s 124, following Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, as requiring culpable or blameworthy conduct creating the situation. It found HNZ had a strongly arguable case that Dr Williamson contributed to the situation (she had admitted inappropriate access in breach of applicable standards), noting HNZ appeared in a stronger position than the employer in McMillan and ANOR v Qube Ports NZ Limited [2026] NZERA 262. Dr Williamson had only a weakly arguable case that s 123C would not bar reinstatement. The practicability and reasonableness of reinstatement under s 125 (following Smith v Fletcher Concrete & Infrastructure Ltd [2020] NZEmpC 125) was noted as strongly arguable in Dr Williamson's favour, but this was outweighed by the s 123C analysis.

5. Whether the balance of convenience favours interim reinstatement — Status: Partially established (paras [66]-[71]).

The Authority considered both the prejudice to Dr Williamson (risk to clinical currency and professional reputation from ongoing exclusion from public health practice, which might not be adequately remedied by compensation) and the risks to HNZ (public confidence, safeguarding of patient information, departmental cohesion). It distinguished Chand v Te Whatu Ora – Health New Zealand [2024] NZERA 58 on the facts, finding that Dr Williamson's privacy breaches were unlikely to deter patients in the way racist conduct might. HNZ's concern about fitness to return to work could be addressed by a medical clearance condition. Overall, the balance of convenience favoured Dr Williamson, but not strongly.

6. Whether, in the overall interests of justice, interim reinstatement should be granted — Status: Dismissed (paras [72]-[74]).

Standing back, the Authority weighed the seriously arguable unjustified dismissal claim (favouring Dr Williamson) against the weakly arguable case for permanent reinstatement (favouring HNZ) and the balance of convenience (moderately favouring Dr Williamson). The most significant factor was HNZ's strongly arguable case that the amended statutory provisions (s 123C) would prevent reinstatement as against Dr Williamson's weakly arguable case that they would not. The overall interests of justice did not support granting interim reinstatement.

7. HNZ's jurisdictional argument that ss 123B and 123C bar the Authority from awarding any remedies — Status: Not reached as a discrete jurisdictional determination (paras [4], [55]-[56], [60]-[61]).

HNZ raised ss 123B and 123C as a jurisdictional bar to remedies. The Authority addressed these provisions only in the context of assessing the arguable case for permanent reinstatement at the interim stage, rather than resolving the jurisdictional question finally. The matter is reserved for the substantive investigation meeting.

8. Costs — Status: Reserved (para [76]).

The Authority reserved costs without further comment, to be addressed at a later stage.

The application for interim reinstatement was dismissed; a substantive investigation meeting will be timetabled to determine the personal grievance claims and the jurisdictional issues.

None ordered at this stage. This is a preliminary determination on interim reinstatement only. Costs are reserved. The substantive hearing — including the personal grievance claims of unjustified disadvantage and unjustified dismissal, and the jurisdictional issues under ss 123B and 123C — remains to be determined.

Jinghui (Jeffery) Peng was employed by Portland Horticulture (2021) Limited as a seasonal casual worker from 3 January 2025, but had his engagement terminated on 21 January 2025 when the client (GGX) advised Portland he was no longer required. Mr Peng argued he was not truly a casual employee in practice and had been unjustifiably dismissed; Portland contended he was genuinely casual and the engagement simply ended when client work dried up. The Authority found Mr Peng was a casual employee and that no unjustified dismissal occurred, dismissing the personal grievance in its entirety.

Applicant: Jinghui (Jeffery) Peng (employee)
Respondent: Portland Horticulture (2021) Limited (first respondent, employer); Kar Yan Eng (second respondent, director)

Applicant: David Kim, advocate for the Applicant
Respondent: Raymond Wheeler for the Respondent

Mr Peng was employed by Portland Horticulture (2021) Limited from 3 January 2025 as a seasonal casual employee, placed at the greenhouse operation of a third-party client (anonymised as GGX) to pick and pack cucumbers. The job advertisement and pre-employment communications referred to approximately three months of work, but the individual employment agreement (IEA) clearly stated casual terms, including no obligation on either party regarding the offer or acceptance of further work, and a termination clause accepting no payment if the client ended the engagement early. On 20 January 2025 GGX lost an external contract and advised Portland it no longer needed Mr Peng; on 21 January 2025 Portland emailed Mr Peng advising no further work was available. Mr Peng raised a personal grievance for unjustified dismissal, contending that in practice he operated as a fixed-term employee given a regular six-day-per-week roster, mandatory sick-leave reporting, and the retention of other workers. Portland and GGX witnesses gave evidence that rosters were set weekly based on availability and fluctuating production needs, and that Mr Peng had freedom to decline shifts and even applied for other casual work during the engagement. Post-employment social media comments by Mr Peng describing himself as a "casual worker" were also placed in evidence.

1. Whether Mr Peng was a casual employee or, in practice, a fixed-term/permanent employee — Status: Established (casual status confirmed) (paras [10]-[34]).

The Authority applied the test from Baker v St John Central Regional Trust Board and Jinkinson v Oceana Gold (NZ) Ltd, requiring assessment of the real nature of the employment relationship by examining the parties' initial intentions and how the relationship actually operated. The IEA contained standard casual clauses, including no obligation to offer or accept work and holiday pay on a pay-as-you-go basis; Ms Eng had explained the variable and weather-dependent nature of the work at interview; and rostering evidence from two independent GGX supervisors showed weekly scheduling based on availability and production need, with Mr Peng able to (and sometimes choosing to) decline days. Mr Peng's own post-employment social media comment describing himself as a "casual worker" undermined his re-characterisation as a fixed-term employee. The Authority concluded that both the intent of the parties and the practical operation of the relationship were consistent with casual employment.

2. Whether Mr Peng was unjustifiably dismissed — Status: Dismissed (paras [35]-[38]).

The Authority applied the principle from Rush Security Services Ltd v Samoa that a failure to engage a casual employee for a further period does not, without more, constitute a dismissal; a dismissal occurs only if employment is terminated mid-engagement. While Mr Peng's engagement did end mid-week (the roster ran Monday to Sunday), the IEA's termination clause expressly provided that if the client ended the engagement early no payment would be owed for the unworked period, and Mr Peng had signed that clause with an opportunity to take advice. The Authority was satisfied this contractual term precluded an unjustified dismissal claim arising from the mid-engagement termination in these circumstances.

3. Whether remedies were available (compensation under s 123(1)(c)(i) and lost wages up to 10 weeks) — Status: Not reached (para [39]).

Because Mr Peng's personal grievance was dismissed, the Authority made no findings on remedies.

4. Whether any remedy should be reduced under s 124 of the Act for Mr Peng's contributory blameworthy conduct — Status: Not reached (para [39]).

As no grievance was established and no remedy was ordered, the question of contribution reduction did not arise.

5. Whether leave should be granted to recover employment standards entitlements from Ms Eng personally as a person involved in any breach under s 142W of the Act — Status: Not reached (para [39]).

This issue was contingent on a breach being established; given the grievance was dismissed and no breach found, this issue was not addressed.

6. Whether either party is entitled to costs — Status: Conditional/Reserved (paras [40]-[42]).

Costs were reserved. The parties were encouraged to resolve costs between themselves. If unresolved, Portland may lodge a costs memorandum within 28 days of the determination, with Mr Peng having 14 days to reply. The Authority indicated it would apply the standard daily tariff unless circumstances warranted adjustment.

The claim was dismissed in its entirety: Mr Peng was found to be a casual employee and no unjustified dismissal was established.

None ordered. Costs reserved pending negotiation between the parties or, if unresolved, determination on the Authority's usual daily tariff basis following filing of memoranda.

Jack Broadley-Ryan, a former employee, sought enforcement of a certified Record of Settlement against his employer Mount Bricklayers Limited (MBL) and its sole director Dean Hodder after MBL failed to pay the outstanding balance of an agreed costs contribution and made a late compensatory payment. The key legal questions concerned whether compliance orders, interest, penalties, and costs could be made against both the company and its director personally. The Authority found breaches of the Record of Settlement established, ordered compliance, imposed a penalty on Mr Hodder, and awarded costs jointly and severally against both respondents.

Applicant: Jack Broadley-Ryan (employee)
Respondent: Mount Bricklayers Limited (First Respondent, employer) and Dean Hodder (Second Respondent, sole director of MBL)

Applicant: Ben Anderson, counsel for the applicant
Respondent: No appearance by or for the respondents

Jack Broadley-Ryan was employed by Mount Bricklayers Limited and was suspended without pay following what he described as a minor work mistake; he subsequently raised a personal grievance. The grievance was resolved at mediation on 16 May 2025, with a Record of Settlement certified under s 149 of the Employment Relations Act 2000, requiring MBL to pay $25,000 in compensation in two instalments and $8,000 + GST ($9,200 inclusive) as a contribution toward Mr Broadley-Ryan's legal costs. MBL paid only $4,600 toward the $9,200 costs contribution on 28 May 2025, and paid the second compensation instalment of $16,000 two days late on 23 June 2025 (due 21 June 2025). Mr Hodder, as sole director, acknowledged the debt on multiple occasions but claimed personal and company financial hardship; he also alleged invoice fraud by the applicant's representatives and offered repayment at $5 per week. Despite being given full opportunity to participate in the Authority's investigation, neither respondent engaged, filed evidence, or appeared at case management — leaving a balance of $4,600 + GST outstanding under the costs contribution clause. Mr Broadley-Ryan filed his statement of problem on 17 December 2025, and the matter was determined on the papers.

1. Whether MBL breached clause 2 of the Record of Settlement (late payment of the $16,000 compensation instalment) — Status: Established (paras [17], [19]).

The clause required payment of $16,000 by 5pm on 21 June 2025. MBL paid on 23 June 2025, two days late. The Authority found this was a breach of clause 2 caused by Mr Hodder's deliberate actions; however, because payment was ultimately made before the clause 3 deadline, the breach did not result in any outstanding financial obligation and was relevant primarily to the penalty analysis.

2. Whether MBL breached clause 3 of the Record of Settlement (acceleration of outstanding balance within 7 days of missed payment) — Status: Dismissed (para [19]).

Clause 3 provided that if any clause 2 instalment was missed, the full outstanding balance became due within 7 days. Although MBL's late payment of the $16,000 triggered clause 3, MBL made that payment on 23 June 2025 — within the 7-day window. The Authority found no breach of clause 3, and also noted that clause 3 did not apply to the clause 4 costs contribution.

3. Whether MBL breached clause 4 of the Record of Settlement (failure to pay the agreed costs contribution of $9,200 inclusive of GST) — Status: Established (paras [18], [28]).

Clause 4 required payment of $8,000 + GST within 3 days of the mediator certifying the agreement. MBL paid only $4,600 on 28 May 2025, leaving a balance of $4,600 + GST unpaid. The Authority found this was an ongoing breach directed by Mr Hodder as sole director, and that MBL remained a registered company with no evidence of liquidation.

4. Whether a compliance order should be made against MBL — Status: Established (paras [21], [28]-[29]).

Section 137(1)(iii) of the Act empowers the Authority to order compliance with terms of settlement enforceable under s 151 and s 149(3). MBL had failed to pay the outstanding balance under clause 4 and had not engaged with the investigation. The Authority ordered MBL to pay $4,600 + GST within 28 days.

5. Whether a compliance order should be made against Dean Hodder personally as a "controlling person"/agent of MBL — Status: Established (paras [22]-[28]).

Relying on Pelabon v Zumo Retail Nelson Ltd [2018] NZERA Wellington 44 and Northern Clerical Workers Union v Lawrence Publishers Co of New Zealand Ltd [1990] 1 NZILR 717, the Authority held that it is not necessary to lift the corporate veil; rather, the focus is on who has the power to put the employer in funds. As sole director, Mr Hodder had complete control over MBL's compliance. Following DFN v BTL Group Ltd [2022] NZERA 170, the Authority ordered Mr Hodder to make the payment as MBL's agent if MBL is unable to comply.

6. Whether interest should be awarded on the outstanding costs contribution — Status: Established (paras [31]-[32]).

The Authority has power to award interest under clause 11 of Schedule 2 of the Act. Interest compensates for deprivation of the use of money. Interest on $4,600 was ordered from 24 May 2025 until payment, to be calculated under Schedule 2 of the Interest on Money Claims Act 2026 using the Ministry of Justice civil debt interest calculator.

7. Whether penalties should be imposed for breaches of the Record of Settlement — Status: Established (paras [33]-[42]).

Under s 149(4) of the Act, any person who breaches agreed terms of settlement is liable to a penalty; s 135(2) caps individual liability at $10,000 and company/corporation liability at $20,000 per breach. Applying principles from ITE v ALA [2016] NZEmpC 42, the Authority considered protection of settlement finality, deterrence, punishment, and proportionality. The Authority declined to impose penalties on both MBL and Mr Hodder for the same conduct. Relying on CultureSafe NZ Ltd v Turuki Healthcare Services Charitable Trust [2020] NZEmpC 165, it found Mr Hodder (a non-party to the settlement) could be liable under s 149(4) as a person with knowledge of the terms. A penalty of $2,000 was imposed on Mr Hodder, reflecting the deliberate and prolonged nature of the breaches while recognising that some obligations under the Record of Settlement had been substantially met. Maximum penalties were declined on the basis that supporting allegations were not sufficiently evidenced.

8. Whether any portion of the penalty should be paid to the applicant under s 136(2) of the Act — Status: Established (para [43]).

Section 136(2) permits the Authority to direct that all or part of a penalty be paid to a person rather than the Crown. The Authority ordered $1,000 of the $2,000 penalty paid to Mr Broadley-Ryan (recognising his role in bringing non-compliance to light) and $1,000 to the Crown.

9. Whether costs should be awarded, and whether an uplift or indemnity costs were appropriate — Status: Partially established (paras [44]-[49]).

Applying the principles in PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808, the Authority confirmed costs follow the event and that conduct unnecessarily increasing costs is relevant. Mr Broadley-Ryan sought indemnity costs of $7,079 + GST; the Authority declined an uplift, following Fagotti v Acme & Co Ltd [2015] ERNZ 919, which cautions against expecting recovery of costs beyond the notional daily rate. The Authority awarded the standard notional tariff of $4,500 + GST plus the filing fee of $71.56, noting the matter was confined in scope and dealt with on the papers. Both MBL and Mr Hodder are jointly and severally liable.

The claim was substantially upheld: compliance orders, interest, a penalty (partially directed to the applicant), and costs were all awarded against the respondents.

- Compliance order: MBL ordered to pay $4,600 + GST (outstanding costs contribution under clause 4 of Record of Settlement) within 28 days; if MBL is unable to comply, Dean Hodder is ordered to make that payment as MBL's agent.
- Interest: Payable on $4,600 from 24 May 2025 until payment in full, calculated under Schedule 2 of the Interest on Money Claims Act 2026.
- Penalty: $2,000 against Dean Hodder — $1,000 to Mr Broadley-Ryan, $1,000 to the Crown — payable within 28 days.
- Costs: MBL and Dean Hodder jointly and severally liable for $4,500 + GST (notional tariff) and $71.56 (filing fee reimbursement).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Applicant: Claudia Serra, advocate
Respondent: No appearance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bobby Manase and Marley Manase, brothers employed by Future Energy Solutions Limited (FES) as civils manager and civils operator respectively, sought arrears of wages, notice pay, and holiday pay following FES's closure in December 2024 and subsequent liquidation. Because FES was in liquidation and unable to pay, the applicants sought orders requiring the three directors — Trevor Marshall, Peter Hale, and Adam Jacques — to personally pay those arrears, and also sought penalties against the directors for aiding and abetting breaches of the employment agreements. The Authority found in favour of the applicants on all substantive issues, ordering the directors jointly and severally to pay the arrears (plus interest) and imposing a $4,000 penalty on each director.

Applicant: Bobby Manase and Marley Manase (employees)
Respondent: Trevor Marshall (First Respondent/director), Peter Hale (Second Respondent/director), Adam Jacques (Third Respondent/director)

Applicant: Kim Ahern, advocate for the Applicants
First Respondent (Trevor Marshall): In person
Second Respondent (Peter Hale): No attendance
Third Respondent (Adam Jacques): In person

Bobby and Marley Manase were employed by FES — a New Zealand company set up by Queensland-based directors Marshall and Hale to carry out pipe and connection work for a major fuel retail client — from 5 June 2024, with annual salaries of $155,000 and $115,000 respectively. In the week of 11 November 2024, FES learned its sole client was halting its installation programme, removing expected work; in early December 2024, director Jacques telephoned the applicants on 5 December conveying that the company had no money, could not pay wages, and the workers should "find jobs elsewhere." The applicants denied receiving any earlier notice of termination and the Authority accepted their evidence, finding their employment was terminated on 5 December 2024. FES then went into court-ordered liquidation on 17 July 2025, preventing the applicants from pursuing personal grievance claims against the company; the applicants amended their claim to pursue the three directors personally under ss 142W and 142Y of the Employment Relations Act 2000 (ER Act). The directors disputed liability: Marshall denied any arrears were owed, Jacques claimed he was merely a messenger after resigning as director, and Hale provided no response and did not attend.

1. Admissibility of recorded telephone conversations — Status: Established (admissible) (paras [19]-[31]).

The Authority considered objections by Mr Marshall that recordings of telephone calls made by a former employee (Mr A) were inadmissible because: (a) recording was allegedly illegal under Australian law; and (b) the recorder breached good faith obligations. The Authority applied s 216B(2) of the Crimes Act 1961 (a party to a call may record it), s 216C(2)(b)(iii) (not prohibited from disclosure in civil proceedings), the Privacy Act 2020 s 22, and the relevance principle in Evidence Act 2006 s 7(3). The Authority found the calls were initiated and heard in New Zealand, their authenticity was undisputed, their content was highly probative, and the applicants were not responsible for making the recordings; accordingly all five reasons supported admission.

2. Admissibility of Queensland solicitor's letter sent to the applicants — Status: Established (admissible by consent) (paras [32]-[41]).

The letter (headed "without prejudice save as to costs") sent on instructions from Mr Marshall alleged timesheet fraud and theft by the applicants, and was sought to be admitted as evidence of improper pressure. Admissibility was referred to another Authority member; Mr Marshall then requested the letter be included, and it was admitted by consent. The Authority found no reliable corroborating evidence for the fraud/theft allegations and noted the letter's timing reasonably gave rise to an inference it was intended to pressure the applicants to drop proceedings; in any event, even if the allegations were established, they would not negate the directors' liability for arrears or penalties. Any claim by FES on those allegations at this stage would require liquidator approval, which had not been sought.

3. Date of termination of employment — Status: Established (paras [78]-[83]).

The Authority applied a balance of probabilities assessment, preferring the evidence of the applicants and Mr Jacques over Mr Marshall's assertion that notice had been given on 20 November and wages paid to 29 November. The Authority found that the phone calls made by Mr Jacques on 5 December 2024 unequivocally communicated termination by telling employees the company could not pay and they should find other work, and no earlier written notice had been proved to have reached the applicants. The claims of constructive dismissal and promissory estoppel raised by the applicants as alternatives were considered but dismissed: there was no resignation (precluding constructive dismissal) and the October oral assurance of continued pay was not a written variation that could override the employment agreement's redundancy and notice terms.

4. Whether personal grievance claims could be pursued — Status: Not reached (paras [2]-[3], [83]).

The applicants had originally raised unjustified disadvantage and unjustified dismissal grievances against FES, but the liquidator declined permission to continue those claims against the company under s 248(1)(c) of the Companies Act 1993. Accordingly, no findings or remedies in respect of the personal grievances could be made in this determination; the termination date finding remained relevant only for the arrears and penalty claims.

5. Quantum of arrears: wages for last week of work (2–5 December 2024) — Status: Established (paras [84]-[92], [100]).

The Authority applied s 132 of the ER Act, which places the burden on the employer to produce wage and time records; FES (and Marshall on its behalf) failed to provide those records despite being asked. The Authority accepted the applicants' evidence that they worked during 2–5 December or were available to work, and calculated pay at their hourly rates for four working days: $2,384.64 for Marley Manase and $1,769.28 for Bobby Manase.

6. Quantum of arrears: notice pay (6–12 December 2024) — Status: Established (paras [86]-[93], [100]).

The employment agreements required one week's written notice or pay in lieu, and the termination was properly characterised as redundancy. The Authority found the applicants were entitled to five days' notice pay they did not receive: $2,980.80 for Marley Manase and $2,211.60 for Bobby Manase, plus 8% holiday pay and 3% KiwiSaver on those amounts.

7. Quantum of arrears: accrued annual holiday pay — Status: Partially established (paras [94]-[99], [100]).

The applicants claimed payment for 96 accrued hours each as shown on their final pay slips, but the Authority found that figure was too high given the six-month employment period (maximum entitlement was 80 hours/10 days). After deducting leave actually taken (4 days for Marley Manase; 3 days for Bobby Manase), the unpaid entitlements were 48 hours ($3,576.96) for Marley Manase and 56 hours ($3,096.24) for Bobby Manase.

8. Whether FES breached employment standards under the Wages Protection Act 1983 (WPA) and the Holidays Act 2003 (HA) — Status: Established (paras [101]-[103]).

Under ss 23 and 27 of the HA, the applicants were entitled to have accrued annual holiday pay paid in full with their final wages. Under s 4 of the WPA, FES was required to pay the full amount of wages (including allowances and KiwiSaver) when due. FES failed to do so, constituting breaches of both statutes.

9. Whether Marshall, Hale, and Jacques were "persons involved" in the breaches under s 142W of the ER Act — Status: Established as to all three (paras [104]-[123]).

Section 142W allows a finding against a person who aided, abetted, counselled, or procured a breach, or was knowingly concerned in it; only officers (including directors) of the employing entity may be so found. Applying the Court of Appeal's test in Labour Inspector v Southern Taxis Ltd [2021] NZCA 705, a director who knows all the primary facts constituting the breach is a person involved unless they reasonably relied on third-party advice or took all reasonable steps to ensure compliance. Marshall's own oral evidence confirmed he gave instructions to dismiss employees knowing wages and holiday pay would not be paid; Jacques's recorded phone call confirmed his knowledge of the company's inability to pay and his direct involvement in communicating termination while still a registered director; Hale's involvement was established through the evidence of Marshall and Jacques, and his failure to participate did not avoid the finding.

10. Whether leave to recover arrears directly from the directors under s 142Y of the ER Act should be granted — Status: Established (paras [124]-[126]).

Section 142Y permits recovery directly from persons involved in breaches where the employing entity is unable to pay. The s 142Y(1) conditions (breach of employment standards, persons involved, and employer unable to pay) were all met: FES is in liquidation with debts exceeding $535,000 and no realistic prospect of paying the arrears. Leave was granted and the liability was ordered on a joint and several basis.

11. Whether interest should be awarded on the arrears — Status: Established (para [127]).

Schedule 2, clause 11 of the ER Act provides for interest. The Authority ordered interest to run from 12 December 2024 (end of the notice period) until the date of full payment, to be calculated using the civil debt interest calculator.

12. Whether penalties should be imposed on the directors under s 134(2) of the ER Act for aiding and abetting breaches of the employment agreements — Status: Established (paras [128]-[133]).

Section 134(2) permits penalties for aiding and abetting breaches of employment agreement terms. The relevant factors under s 133A of the ER Act include the objects of the ER Act, whether the breach was intentional, its seriousness and duration, deterrence, and proportionality. The Authority found all three directors intentionally caused FES to breach the wage payment and holiday pay terms, imposing a $4,000 penalty on each. Under s 136(2), each director must pay $2,000 directly to the applicants and $2,000 to the Authority for transfer to a Crown account.

13. Costs — Status: Reserved (paras [135]-[137]).

Costs were reserved, with the parties encouraged to reach agreement. If no agreement, the applicants may lodge a costs memorandum within 28 days, with respondents having 14 days to reply. The Authority indicated it would apply its usual notional daily rate unless special circumstances warranted adjustment.

The claims were upheld in full: arrears, interest, leave to recover directly from the directors, and penalties were all granted; the alternative personal grievance claims could not be pursued due to liquidation; costs were reserved.

- Arrears to Marley Manase: $9,532.59 (wages for last week of work, notice pay, holiday pay, KiwiSaver contributions), plus interest from 12 December 2024 to date of payment (calculated via civil debt interest calculator).
- Arrears to Bobby Manase: $7,515.02 (same components), plus interest from 12 December 2024 to date of payment.
- Liability for arrears and interest: joint and several as against Marshall, Hale, and Jacques; payable within 28 days of the determination.
- Penalties: $4,000 each imposed on Marshall, Hale, and Jacques ($12,000 total); of each $4,000, $2,000 payable directly to the applicants and $2,000 to the Authority for the Crown account; payable within 28 days.
- Reinstatement: Not ordered (and not sought — personal grievance claims not pursued).
- Costs: Reserved.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Butler-Smith was employed as a part-time permanent farm assistant by the DG and DV Cavey Partnership from around August 2022. She fell pregnant during her employment and went on parental leave in mid-August 2023, with her baby born on 6 September 2023. During her parental leave, she attended the workplace approximately twice a month to assist with paperwork — approximately two hours per month — for which she was not paid. Her confirmed return date was 19 February 2024, but on 13 February 2024, she was called to a meeting and verbally dismissed on the basis that having a baby on the farm created health and safety issues; written confirmation followed on 20 February 2024. The Partnership did not appear at the investigation meeting, did not engage in the proceedings, and failed to provide wage and time records despite Ms Butler-Smith's request. Ms Butler-Smith gave evidence of the significant emotional, financial, and parenting impact of the unexpected dismissal while she was in a vulnerable state as a first-time mother.

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

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

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

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

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

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

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

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

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

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

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

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

7. Whether Ms Butler-Smith was entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Employment Relations Act 2000 — Status: Partially established (no specific paragraph numbers in the document).

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

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

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

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

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

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

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