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[COSTS ONLY]

Applicant: Macfarlane Seymour (employee)
Respondent: Hilton Haulage Limited (employer)

Applicant: Itania Nikolai, advocate
Respondent: David Traylor, counsel

This is a costs-only determination following a substantive decision ([2026] NZERA 290, dated 11 May 2026) in which Mr Seymour's claim of unjustified disadvantage against Hilton Haulage Limited was dismissed. Costs had been reserved in the hope the parties would settle the issue themselves, but they could not agree. The Authority awarded Hilton $8,500 in costs, a partial uplift above the standard notional daily tariff of $6,250 for a one-and-a-half-day investigation meeting.

Mr Seymour brought a personal grievance claim of unjustified disadvantage against Hilton Haulage Limited, which was dismissed in a substantive determination dated 11 May 2026. The investigation meeting ran for one and a half days. Costs were reserved at that stage. Both parties subsequently filed submissions on costs. Hilton sought $16,000 on the basis that actual costs exceeded that figure and that the Applicant's conduct during proceedings caused additional work. Mr Seymour's advocate argued the claim was brought in good faith and that ordinary amendments to pleadings do not justify an uplift.

1. Costs Award: Whether costs should be awarded to the successful respondent, and at what level — [Established]
2. Costs Uplift: Whether circumstances justified an uplift above the notional daily tariff rate — [Partially established]
3. Financial Hardship: Whether Mr Seymour's alleged financial hardship should reduce or affect the costs order — [Dismissed]

1. Costs Award: The Authority applied the well-settled principles in PBO Limited (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808, confirming that costs are discretionary, follow the event, and should be modest and reasonable rather than punitive. As the respondent was the successful party, it was entitled to a costs contribution. The Authority ordered Mr Seymour to pay $8,500 pursuant to clause 15 of Schedule 2 of the Employment Relations Act 2000.
2. Costs Uplift: Hilton sought $16,000, arguing that the Applicant's ambiguous pleadings (despite two amended Statements of Problem), the advocate's dual role as witness and advocate, fictitious legal references in correspondence, a last-minute support person issue before the second day, and misrepresentations and novel issues in closing submissions all caused additional costs. The Authority accepted that the lack of clarity in the Applicant's claims did cause additional costs to some extent, justifying a partial uplift. However, the full amount sought was not granted; the Authority set costs at $8,500, above the notional tariff of $6,250 for a one-and-a-half-day hearing but well below the $16,000 claimed.
3. Financial Hardship: Mr Seymour's advocate submitted he had suffered reduced income and financial hardship following the events that gave rise to the proceedings. The Authority noted that no supporting evidence of financial hardship had been provided, and accordingly did not reduce the costs order on that basis. However, the Authority reserved leave for the parties to revert if Mr Seymour wished to provide such evidence and seek an instalment arrangement with Hilton's agreement.

The claim for costs was partially upheld: Hilton was awarded $8,500 in costs, representing a partial uplift above the standard tariff but significantly below the amount claimed.

Costs: $8,500 ordered against the Applicant (Mr Seymour) in favour of the Respondent (Hilton Haulage Limited), pursuant to clause 15 of Schedule 2 of the Employment Relations Act 2000. Leave reserved for parties to revert to the Authority regarding instalment arrangements if agreed upon and subsequently not adhered to. No other remedies ordered.

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Applicant: Debbie Watkins (employee)
Respondent: Tautoko Mai Sexual Harm Support Services Trust (employer)

Applicant: Mark Beech, counsel for the Applicant
Respondent: Stephen Corlett, counsel for the Respondent

Debbie Watkins, a social worker, was dismissed after more than eight months of continuous sick leave following an investigation (which ultimately cleared her) into a client transport incident in December 2023. She refused to return to work, contending the workplace was unsafe and demanding management accept blame and implement policy changes. The Authority found her dismissal for medical incapacity was substantively and procedurally justified, dismissed all personal grievance claims, and made no remedial orders.

Ms Watkins was employed by the Trust as a social worker. On 20 December 2023, she transported a client from Tauranga to Whakatane using the Trust's car, leading to a miscommunication with two managers about whether proper risk assessment approval had been obtained for the second, longer trip. The Trust investigated, initially raising concerns about health and safety and honesty, but ultimately accepted Ms Watkins' version of events in March 2024 and took no disciplinary action. Ms Watkins went on sick leave from 7 February 2024 and never returned; she provided medical certificates throughout but offered no diagnosis, prognosis, or return-to-work date. After extensive correspondence, mediation, and concessions by the Trust (including changing her reporting line and updating risk assessment protocols), Ms Watkins still declined to return, insisting managers admit "incompetence" and additional unspecified policy changes be made. On 11 September 2024, after more than eight months of absence with no clear medical information or return-to-work commitment, the Trust terminated her employment on the grounds of medical incapacity.

1. Unjustified Dismissal (medical incapacity): Whether the Trust's decision to dismiss Ms Watkins for medical incapacity after more than eight months of sick leave was substantively and procedurally justified under s 103A of the Employment Relations Act 2000 — (Dismissed)
2. Unjustified Disadvantage – Dishonesty Allegation: Whether the Trust unjustifiably disadvantaged Ms Watkins by raising allegations of dishonesty and focusing on her conduct during the investigation into the 20 December 2023 incident — (Dismissed)
3. Unjustified Disadvantage – Medical Incapacity Process: Whether initiating the medical incapacity process while Ms Watkins was allegedly "awaiting engagement around her concerns" constituted unjustified disadvantage — (Dismissed)
4. Unjustified Disadvantage – Facebook Post: Whether the Trust improperly took into account Ms Watkins' Facebook post ("looking forward to our new life in Perth") as a factor in her dismissal, constituting unjustified disadvantage — (Dismissed)
5. Breach of Good Faith (s 4): Whether the Trust breached its good faith obligations by failing to be active, constructive, and communicative in maintaining the employment relationship — (Dismissed)
6. Remedies (lost wages and s 123(1)(c)(i) compensation): Whether Ms Watkins was entitled to lost wages and/or compensation for humiliation, loss of dignity, and injury to feelings — (Not reached)
7. Contributory Conduct (s 124): Whether any remedies awarded should be reduced due to Ms Watkins' blameworthy conduct contributing to the situation — (Not reached)
8. Penalties for breach of good faith: Whether penalties should be imposed on the Trust in connection with the good faith breach claim — (Not reached)
9. Section 123(1)(ca) recommendations: Whether the Authority should make any recommendations to the Trust under s 123(1)(ca) of the Act — (Not reached)
10. Costs: Whether either party should contribute to the other's costs of representation — (Reserved)

1. Unjustified Dismissal (medical incapacity): The Authority applied the "fair cry halt" test from Hoskin v Coastal Fish Supplies Ltd, noting that employers may consider the economic impact of prolonged absence and are not required to hold a position open indefinitely (Lyttelton Port Co Ltd v Arthurs). It also applied Dunn v Waitemata DHB, which requires employees to engage constructively with rehabilitation efforts. The Authority found that Ms Watkins had been on sick leave for over eight months, provided only bare medical certificates with no diagnosis or return-to-work date, and declined to engage meaningfully despite multiple opportunities and genuine concessions from the Trust. The Trust gave proper notice of its intention to consider termination and offered multiple opportunities for Ms Watkins to respond. The claim of unjustified dismissal was not made out.
2. Unjustified Disadvantage – Dishonesty Allegation: The Authority found the Trust had reasonable grounds to investigate the December 2023 incident and to put the concern about apparent dishonesty to Ms Watkins for her response. This was consistent with good faith obligations to be active and communicative. No aspect of her employment was affected to her disadvantage as a result, and no disciplinary action was taken. This claim was not made out.
3. Unjustified Disadvantage – Medical Incapacity Process: The Authority rejected Ms Watkins' characterisation that she was "waiting for engagement." The Trust had actively engaged with her concerns over a considerable period, made changes to reporting lines and risk assessment procedures, and had waited over eight months without any return-to-work information. The Trust was entitled to raise medical incapacity in these circumstances. This claim was not made out.
4. Unjustified Disadvantage – Facebook Post: The Authority accepted that the Trust was entitled to seek clarification from Ms Watkins about the post, given its face-value suggestion of an imminent move to Perth. However, the contemporaneous documents and the evidence of the decision-maker (Mr Pretorius) confirmed the post was not a factor in the termination decision. There was no demonstrable adverse impact on Ms Watkins' employment. This claim was not made out.
5. Breach of Good Faith (s 4): The Authority found the Trust had actively and substantively engaged with Ms Watkins over a considerable period, took her concerns seriously, and made objectively reasonable changes in response. The Trust's refusal to require managers to admit "incompetence" or accept Ms Watkins' characterisation of events did not constitute a failure of good faith obligations. This claim was not made out.
6. Remedies: Because none of Ms Watkins' personal grievance claims were established, no questions of remedy arose and no assessment was undertaken.
7. Contributory Conduct (s 124): Because no grievance was established, no reduction for contributory conduct was required or considered.
8. Penalties for breach of good faith: The good faith claim was not established, so no penalty was considered or imposed.
9. Section 123(1)(ca) recommendations: As no personal grievance was established, no recommendations under s 123(1)(ca) were made.
10. Costs: Costs were reserved. The parties were encouraged to resolve costs between themselves. If they could not, the respondent was given 28 days to lodge and serve a memorandum on costs, with the applicant having 14 days to reply. The Authority indicated it would apply its usual "daily tariff" basis if required to determine costs.

All of Ms Watkins' personal grievance claims (unjustified dismissal, unjustified disadvantage, and breach of good faith) were dismissed; no orders were made in her favour.

None ordered. Costs reserved.

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