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Applicant: John Huntley-Byrne (employee)
Respondent: Dallison 2021 Limited (employer)

Applicant: Dave Cain, advocate
Respondent: Kylie James (self-represented as director)

John Huntley-Byrne was employed as a café worker at Hind Quarters café (operated by Dallison 2021 Limited) from June to November 2024, when he was summarily dismissed for alleged serious misconduct following an incomplete café close-down. The Authority found the dismissal unjustified on procedural grounds — specifically, Dallison failed to convene a formal disciplinary meeting, did not allow Huntley-Byrne a proper opportunity to respond with support, and conducted the process via a group messenger chat. He was awarded lost wages and compensation for humiliation, both reduced by 10% for his contributory conduct, plus a nominal penalty against Dallison for failing to provide complete wage and time records.

John Huntley-Byrne commenced employment with Dallison 2021 Limited at its Waverley café on 5 June 2024, working general kitchen duties including cooking and dishwashing. Performance concerns arose within weeks, including absenteeism, presentation issues, and alleged work practice failures, though Huntley-Byrne disputed many of these. A meeting was held in October 2024 regarding conduct issues, after which a written final warning letter (dated 29 October 2024) was placed in a sealed envelope and handed to Huntley-Byrne — he never opened it and director Kylie James never directed him to do so. On 17 November 2024, Huntley-Byrne closed the café but left several tasks incomplete; Ms James photographed these and posted them in a group staff messenger chat. On 18 November 2024, Ms James dismissed Huntley-Byrne via a text message exchange, stating "you blew it yesterday," without convening any formal disciplinary meeting or providing an opportunity to respond with support. Huntley-Byrne claimed he never received a formal dismissal letter that was allegedly posted to him, and he did not see the warning letter until it appeared in Dallison's Statement in Reply in June 2025.

1. Unjustified Dismissal: Whether Dallison's decision to summarily dismiss Huntley-Byrne met the statutory test under s 103A of the Employment Relations Act 2000 — specifically whether a fair and reasonable employer could have acted as Dallison did, having regard to the four procedural requirements in s 103A(3) — [Established]
2. Lost Wages: Whether Huntley-Byrne is entitled to compensation for lost wages under s 123(1)(b) of the Act, and whether he took adequate steps to minimise his loss — [Established]
3. Humiliation Compensation: Whether Huntley-Byrne is entitled to compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Act, and the appropriate quantum — [Established]
4. Contributory Conduct: Whether Huntley-Byrne's own conduct contributed to the situation giving rise to the grievance under s 124 of the Act, and if so, the appropriate percentage reduction in remedies — [Established]
5. Wage and Time Records Breach: Whether Dallison breached s 130(2) of the Act by failing to provide complete wage and time records when requested — [Established]
6. Penalties: Whether a penalty should be imposed for the s 130(2) breach, the appropriate quantum, and whether it should be payable to Huntley-Byrne or the Crown — [Established]
7. Costs: Whether either party should contribute to the other's costs of representation — [Conditional/reserved]

1. Unjustified Dismissal: The Authority applied the s 103A(2) objective test — whether a fair and reasonable employer could have acted as Dallison did. The Authority found that while some informal investigation occurred (café visit, photos, group chat exchange), Dallison failed to meet the procedural requirements of s 103A(3): no formal disciplinary meeting was convened, Huntley-Byrne was not given a proper opportunity to respond with support, and conducting the process via a group messenger chat was found to be inappropriate given that dismissal was a possible outcome. The Authority noted Dallison had demonstrated it could follow a proper process, having done so for the October 2024 meeting. The dismissal was found unjustified.
2. Lost Wages: The applicable principle requires an employee to take reasonable steps to mitigate loss (citing Argosy Imports Ltd v Lineham [1998]). Dallison asserted Huntley-Byrne failed to seek work promptly but provided no supporting evidence; Huntley-Byrne provided documentation of job applications via Trade Me, Seek, and Zeil, and engagement with WINZ. The Authority was satisfied with his mitigation efforts and awarded the full claimed gross amount of $8,299.20 (13 weeks at $24/hour, averaging 26.6 hours/week), subject to the contributory reduction.
3. Humiliation Compensation: Under s 123(1)(c)(i), compensation is intended to quantify harm, not punish the employer (citing Paykel Ltd v Ahlfield [1993], Stormont v Peddle Thorp Aitken Ltd [2017], Waikato DHB v Archibald [2017], Richora Group Ltd v Cheng [2018]). Huntley-Byrne described financial hardship (selling his car, struggling to pay bills), a 13-week WINZ stand-down, poor sleep, anxiety, depression, isolation, and relationship strain. The Authority found he was adversely impacted and awarded $15,000, subject to the contributory reduction.
4. Contributory Conduct: Under s 124, the Authority must consider whether the employee's own actions contributed to the situation giving rise to the grievance. The Authority accepted that Huntley-Byrne knew the café close-down standards from prior experience, and that the incomplete tasks on 17 November 2024 partially contributed to the situation. A 10% reduction was applied to all financial remedies.
5. Wage and Time Records Breach: Section 130(2) requires employers to maintain and provide wage and time records. The Authority accepted that Dallison's failure to provide complete records when first requested constituted a breach of s 130(2). The breach was noted to have caused no direct financial harm (no unpaid wages claim was made), but a breach was nonetheless established.
6. Penalties: The Authority applied s 133A principles and the framework from Borsboom v Preet PVT Limited [2016]: penalties are punitive and deterrent in purpose, not compensatory. Noting that Huntley-Byrne had already been awarded substantial remedies and that the breach caused no direct financial loss, the Authority imposed a nominal penalty of $500, payable to the Crown (not to Huntley-Byrne), to promote compliance.
7. Costs: Costs were reserved. The parties were encouraged to resolve costs between themselves. If unresolved, Huntley-Byrne may file a costs memorandum within 28 days, with Dallison having 14 days to reply. The Authority indicated it would apply its usual daily tariff basis, adjusted if circumstances warrant.

The claim was partially upheld — unjustified dismissal established, lost wages and humiliation compensation awarded (both reduced by 10% for contributory conduct), a nominal penalty imposed for the wage records breach, and costs reserved.

- Lost wages: $7,469.28 gross (being $8,299.20 reduced by 10% for contributory conduct)
- Compensation for humiliation, loss of dignity, and injury to feelings: $13,500.00 (being $15,000 reduced by 10% for contributory conduct)
- Contributory reduction: 10% applied to all financial remedies — Huntley-Byrne left multiple café close-down tasks incomplete on 17 November 2024, contributing to the circumstances that triggered the dismissal
- Penalty: $500.00 payable to the Crown for breach of s 130(2) (failure to provide complete wage and time records)
- Costs: Reserved; parties encouraged to settle; memorandum process specified if unresolved
- Reinstatement: Not sought or ordered
- All payments due within 28 days of the determination date

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Applicant: Jennifer Jacobsen (employee)
Respondent: Cube Innovations Limited (employer)

Applicant: Caroline Silk, counsel
Respondent: Dave Etchells, self-represented (sole director of respondent)

Jennifer Jacobsen, a part-time Marketing Consultant, was summarily dismissed by Cube Innovations Limited after only two weeks of work, purportedly under a 90-day trial period. The Authority found the trial period invalid because Cube failed to give the required contractual notice on dismissal and because the employment agreement was signed after Ms Jacobsen had already commenced work. Cube's unjustified dismissal and failure to provide written reasons for dismissal were both established, resulting in awards of $2,436 in lost wages and $15,000 in hurt and humiliation compensation, plus KiwiSaver employer contributions.

Ms Jacobsen was engaged by Cube as a part-time Marketing Consultant (one day per week) commencing 17 February 2025, at $29 per hour, travelling from New Plymouth to Hamilton. The employment agreement (IEA), which included a 90-day trial period clause, was sent to Ms Jacobsen on 12 February 2025; she sought and received advice from her father (an experienced HR professional) before the agreement was signed on her first day of work, 17 February 2025. The key factual dispute was whether the IEA was signed before or after Ms Jacobsen began working: she said it was signed around an hour after she started work, while Mr Etchells (Cube's sole director, who appeared without his intended witness) said it was signed first. On 4 March 2025, after only two working days, Cube emailed Ms Jacobsen dismissing her with no reasons and no notice, purporting to rely on the trial period. Ms Jacobsen sought reinstatement of lost wages, hurt and humiliation compensation, KiwiSaver contributions, and a good faith penalty, all of which were disputed by Cube, which maintained the trial period was valid.

1. Trial Period Validity – Pre-commencement signing: Was the IEA's trial period provision invalidated because Ms Jacobsen signed the employment agreement after commencing work? — [Established]
2. Trial Period Validity – Failure to give notice: Was the trial period invalidated because Cube failed to provide the three days' contractual notice (or pay in lieu) upon dismissal? — [Established]
3. Trial Period Validity – Travel as "work": Was Ms Jacobsen's travel from New Plymouth to Hamilton the day before commencement "work" such as to further invalidate the trial period? — [Dismissed]
4. Unjustified Dismissal: Was Ms Jacobsen unjustifiably dismissed by Cube within the meaning of section 103A of the Act? — [Established]
5. Unjustified Disadvantage – Failure to train: Did Cube unjustifiably disadvantage Ms Jacobsen by failing to provide adequate training and support? — [Dismissed]
6. Unjustified Disadvantage – Failure to provide written reasons: Did Cube unjustifiably disadvantage Ms Jacobsen by refusing to provide written reasons for dismissal under section 120 of the Act? — [Established]
7. Lost Wages: Should Ms Jacobsen receive reimbursement of lost wages (including lost KiwiSaver employer contributions) as a remedy? — [Established]
8. Hurt and Humiliation Compensation: Should Ms Jacobsen receive compensation for hurt, humiliation, loss of dignity, and injury to feelings under section 123(1)(c)(i) of the Act? — [Established]
9. Contributory Conduct: Did Ms Jacobsen contribute to the situation giving rise to her grievance, warranting a reduction in remedies under section 124 of the Act? — [Dismissed]
10. Good Faith Penalty: Did Cube breach its duty of good faith under section 4A of the Act, and should a penalty be imposed? — [Dismissed]
11. Costs: Should either party contribute to the other's costs of representation? — [Reserved/deferred]

1. Trial Period Validity – Pre-commencement signing: The Authority found it more likely than not that the IEA was signed at least one hour after Ms Jacobsen had already commenced work, following an induction, site tour and a period working on a spreadsheet. This breach of the requirement that the agreement be signed before the employee commences work (per Smith v Stokes Valley Pharmacy (2009) Ltd [2010] NZEmpC 111) invalidated the trial period. The Authority noted that Mr Etchells's evidence that signing occurred first only emerged in his formal witness statement and appeared to be self-serving. However, this finding was secondary given the more decisive notice finding.
2. Trial Period Validity – Failure to give notice: The applicable trial period clause required three days' notice (or garden leave/pay in lieu). Mr Etchells admitted Cube gave no notice and made no payment in lieu. The Authority applied Ioan v Scott Technology NZ Ltd [2019] NZCA 386 and Roach v Nazareth Care Charitable Trust [2018] NZEmpC 123, confirming that deficient notice is not lawful notice, and that failure to provide contractual notice invalidates reliance on a trial period provision. This was independently sufficient to invalidate the trial period.
3. Trial Period Validity – Travel as "work": The Authority rejected the submission that Ms Jacobsen's travel from New Plymouth the day before was "work." She was not performing any tasks for Cube during the journey, was not under direction or control beyond the requirement to present for work the next day, and the payments she received (travel, accommodation, meals) were properly characterised as reimbursing allowances for an unusually long commute rather than remuneration for work performed.
4. Unjustified Dismissal: With the trial period invalid, Cube's dismissal of Ms Jacobsen was subject to the section 103A justification test. The Authority found the dismissal was unexpected and perfunctory: delivered by email with no explanation, no prior raising of concerns, no opportunity for Ms Jacobsen to respond, and no genuine consideration of her position. These were significant, not minor, procedural and substantive deficiencies. Cube could not satisfy the test of justification and the unjustified dismissal was established.
5. Unjustified Disadvantage – Failure to train: Applying Jansen v BDS Chartered Accountants Ltd [2026] NZERA 230, the Authority considered Cube's size, Ms Jacobsen's short tenure, and the training actually provided. While the approach was ad hoc rather than structured, Ms Jacobsen received an induction and some on-the-job training from Ms Mansill. The Authority found the training provided was reasonable in the circumstances and this disadvantage claim was not established.
6. Unjustified Disadvantage – Failure to provide written reasons: Under section 120 of the Act, an employee may request written reasons for dismissal within 60 days, and the employer must respond within 14 days (subject to an exception for valid trial periods). Because the trial period was invalid, no exception applied. Cube, by admission, failed to provide reasons when requested and Mr Etchells refused again at the investigation meeting. The Authority found this deprived Ms Jacobsen of a statutory right and, although it occurred post-employment, the obligation survives the employment relationship and is justiciable as a disadvantage.
7. Lost Wages: The Authority applied the principles from Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, noting that awards are discretionary, moderation is appropriate, and a broad-brush approach is inevitable. Ms Jacobsen's continued café employment was relevant to mitigation, but the Authority accepted that increasing her hours there was not immediately possible and that emotional harm would have affected her ability to find replacement work. Three months' lost wages at six hours per week at $29 per hour was awarded at $2,436 gross. KiwiSaver employer contributions on that amount were also awarded under section 123(1)(c)(ii).
8. Hurt and Humiliation Compensation: The Authority assessed the impact on Ms Jacobsen individually — she remained visibly upset at the hearing, suffered embarrassment, lost confidence, and her self-worth was still recovering. The Authority compared the facts to Reddy v Studio Image Ltd [2026] NZERA 323 ($13,500 awarded for similarly perfunctory dismissal) and Roach ($25,000, which had additional aggravating features). The total award of $15,000 was split as $13,000 for the unjustified dismissal and $2,000 for the unjustified disadvantage.
9. Contributory Conduct: The Authority found no contributory conduct by Ms Jacobsen. She had attended work as required, done what was asked, and no concerns about her performance or conduct had ever been raised by Cube. No reduction to remedies was applied.
10. Good Faith Penalty: The Authority applied the high threshold for a section 4A penalty — requiring deliberate, serious, and sustained conduct intended to undermine the employment relationship. While Cube's conduct was unjustified, Mr Etchells genuinely (if wrongly) believed he could rely on the trial period. The Authority found no evidence of intent to deliberately undermine the employment relationship, distinguishing the case from others where penalties have been imposed (e.g. McCann v Winton Capital Ltd [2025] NZERA 171). No penalty was imposed.
11. Costs: The Authority reserved costs and directed the parties to attempt to resolve costs between themselves. If not resolved, Ms Jacobsen may file a costs memorandum within 14 days of the written determination, with Cube having 14 days to reply. The Authority indicated it would apply its usual notional daily rate absent special factors.

The claim was partially upheld: unjustified dismissal and unjustified disadvantage (failure to provide written reasons) were both established, but the unjustified disadvantage claim regarding training and the good faith penalty claim were dismissed.

- Lost wages: $2,436 gross (three months' lost wages at 6 hours per week at $29/hour), less applicable tax, deductions, or withholdings.
- KiwiSaver employer contribution: Calculated in accordance with the KiwiSaver Act 2006 on the $2,436 lost remuneration figure.
- Hurt and humiliation compensation: $15,000 (comprising $13,000 for unjustified dismissal and $2,000 for unjustified disadvantage), paid without deduction.
- Contributory reduction: None applied.
- Penalty: None ordered.
- Costs: Reserved; parties encouraged to agree costs; timetable set if Authority determination required.
- Reinstatement: Not sought or ordered.
- All amounts payable within 28 days of the determination.

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Applicant: Wayne Blackbourn and Rebecca Malone (employees)
Respondent: Trustees of Coirebhrecain Trust (First Respondent/employer); Tony Kuriger (Second Respondent/Trustee)

Applicant: Kelly Coley, advocate for the Applicants
Respondent: No appearance

Two employees — partners Wayne Blackbourn and Rebecca Malone — who worked on a farm in Woodville claimed arrears of wages, unpaid KiwiSaver employer contributions, and public holiday pay breaches against the Coirebhrecain Trust, which failed to engage with the Authority's process. The Authority accepted the applicants' uncontested evidence in full and ordered the known Trustee, Tony Kuriger, to pay a total of approximately $9,386 across both applicants. Penalties were declined at this stage due to uncertainty about the full identity of the Trustees.

Mr Blackbourn was employed full-time by the Coirebhrecain Trust on a farm in Woodville for approximately six years, and Ms Malone was employed seasonally over four years; both relationships ended on 31 May 2024. KiwiSaver employer contributions were paid for both employees until late-October 2022 when they abruptly ceased. Upon termination, Mr Blackbourn was told he was owed approximately $7,000 but received only $2,186.44, while Ms Malone was short paid approximately $300. The applicants made repeated unsuccessful attempts to recover unpaid wages from Mr Kuriger, and a formal request for wage and time records on 16 September 2024 also went unanswered. Despite being served with all relevant Authority documents, neither the Trust nor Mr Kuriger appeared at the investigation meeting or made any submissions.

1. Wage Arrears (Blackbourn): Whether Mr Blackbourn was owed unpaid wages and holiday pay — [Established]
2. Wage Arrears (Malone): Whether Ms Malone was owed unpaid wages from her final pay — [Established]
3. KiwiSaver Contributions (Blackbourn): Whether the Trust breached s 101B of the KiwiSaver Act 2006 by failing to pay employer KiwiSaver contributions for Mr Blackbourn — [Established]
4. KiwiSaver Contributions (Malone): Whether the Trust breached s 101B of the KiwiSaver Act 2006 by failing to pay employer KiwiSaver contributions for Ms Malone — [Established]
5. Public Holiday Pay (Blackbourn): Whether Mr Blackbourn was not correctly paid for public holidays under ss 50 and 56 of the Holidays Act 2003 — [Established]
6. Failure to Provide Records: Whether the Trust breached s 130 of the Employment Relations Act 2000 and s 82 of the Holidays Act 2003 by failing to provide wage, time, and holiday/leave records — [Established (underlying breach found, but penalty not imposed)]
7. Penalties: Whether penalties should be imposed for breaches of s 75(2)(c) of the Holidays Act 2003, s 101B of the KiwiSaver Act 2006, and s 134(2) of the Employment Relations Act 2000 — [Not reached/Declined]
8. Trustee Liability: Whether Mr Kuriger as Trustee is jointly and severally liable for the Trust's obligations — [Established]

1. Wage Arrears (Blackbourn): The Authority accepted Mr Blackbourn's uncontested evidence that he was short paid on termination despite being owed approximately $7,000. Mr Blackbourn is owed $4,813.56 in unpaid wages and holiday pay.
2. Wage Arrears (Malone): Ms Malone's uncontested evidence established a shortfall of $300 in her final pay, which the Authority accepted as due and owing.
3. KiwiSaver Contributions (Blackbourn): The Trust ceased paying employer KiwiSaver contributions from late-October 2022 in breach of s 101B of the KiwiSaver Act 2006. The Authority found $3,199.22 owed to Mr Blackbourn.
4. KiwiSaver Contributions (Malone): Similarly, Ms Malone's employer KiwiSaver contributions ceased from late-October 2022. The Authority found $1,073.79 owed to Ms Malone.
5. Public Holiday Pay (Blackbourn): Mr Blackbourn gave evidence he was not correctly paid for public holidays as required by ss 50 and 56 of the Holidays Act 2003. This finding is incorporated within the $4,813.56 awarded for unpaid wages and holiday pay.
6. Failure to Provide Records: The Trust failed to provide wage, time, and holiday/leave records when requested, breaching s 130 of the Employment Relations Act 2000 and s 82 of the Holidays Act 2003. While the breach was established, the Authority declined to impose a penalty at this stage (see issue 7).
7. Penalties: The Authority declined to impose penalties because the Trustees of the Trust are jointly and severally liable for any penalty order, and the Authority was uncertain as to the full identity of all Trustees beyond Mr Kuriger. No penalty was made at this point due to that uncertainty.
8. Trustee Liability: The Authority found that Mr Kuriger is a Trustee of the Coirebhrecain Trust and is jointly and severally liable for the Trust's obligations. All payment orders were directed to Mr Kuriger as the known Trustee.

The claims for wage arrears and unpaid KiwiSaver contributions were upheld in full; the claim for penalties was declined at this stage due to uncertainty about the full identity of the Trustees.

- Unpaid wages and holiday pay (Blackbourn): $4,813.56 (less PAYE)
- KiwiSaver employer contributions (Blackbourn): $3,199.22
- Unpaid wages – final pay shortfall (Malone): $300 (less PAYE)
- KiwiSaver employer contributions (Malone): $1,073.79
- Total ordered: approximately $9,386.57
- Penalties: None ordered (declined pending clarification of all Trustees)
- Reinstatement: No
- Costs: Reserved; parties encouraged to resolve between themselves; memorandum process outlined if needed

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Applicant: EQX (employee)
Respondent: KiwiRail Limited (employer)

Applicant: Ben Thompson, counsel for the Applicant
Respondent: Anthony Russell and Ella Coggan, counsel for the Respondent

EQX, a container terminal operator (CTO) with KiwiRail since 2002, was dismissed in January 2026 on medical grounds after being classified as Permanently Unfit for Duty under the National Standards for Health Assessment of Rail Safety Workers. He sought interim reinstatement pending a substantive investigation of his unjustified dismissal grievance. The Authority granted interim reinstatement, finding EQX had a seriously arguable case for both unjustified dismissal and permanent reinstatement, and that the balance of convenience and overall justice favoured reinstatement.

EQX had worked as a CTO for KiwiRail since 2002, a safety-critical role requiring ongoing medical assessments under national rail safety standards. He had managed type 2 diabetes since 2014 and was diagnosed with severe obstructive sleep apnoea (OSA) in 2023. In October 2025 his fitness classification changed to Temporarily Unfit for Duty; by early November 2025 the registered medical officer (RMO) and chief medical officer (CMO) classified him as Permanently Unfit for Duty. KiwiRail held two meetings with EQX and his union representative in November 2025 and January 2026, then proceeded with medical retirement on 13 January 2026, paying out a medical retirement entitlement. EQX raised a personal grievance on 17 February 2026 and, after receiving internal KiwiRail communications in March 2026 showing the CMO had acknowledged the need for specialist reviews not actually completed before dismissal, applied to the Authority on 2 April 2026 for interim reinstatement. KiwiRail opposed interim reinstatement, arguing EQX remained unfit, reinstatement would create health and safety risks, and damages would be an adequate remedy.

1. Non-Publication Order: Whether EQX's name and identifying details should be suppressed given the private medical information involved — [Established]
2. Urgency of Interim Application: Whether the interim reinstatement application should be accorded urgency — [Established]
3. Seriously Arguable Case – Unjustified Dismissal: Whether EQX has a seriously arguable (not frivolous or vexatious) case that his dismissal was unjustified, including whether KiwiRail followed the correct process under the collective agreement and Standards and whether good faith obligations under ss 4(1A)(c) and 103A(3) of the Employment Relations Act 2000 were met — [Established]
4. Seriously Arguable Case – Permanent Reinstatement: Whether EQX has a seriously arguable case that permanent reinstatement is practicable and reasonable under s 125 of the Employment Relations Act 2000 — [Established]
5. Balance of Convenience: Whether the balance of convenience favours granting interim reinstatement, considering health and safety obligations, adequacy of damages, delay, and the medical retirement payment — [Established (favouring EQX)]
6. Overall Justice: Whether overall justice requires interim reinstatement — [Established (favouring EQX)]
7. Interim Reinstatement Order Conditions: Whether conditions should attach to the interim reinstatement order — [Dismissed (no conditions required)]
8. Costs: Whether costs should be determined — [Reserved]

1. Non-Publication Order: The Authority applied s 174A of the Employment Relations Act 2000 (by implication), noting that significant private medical information would be canvassed in the determination and associating it with EQX by name would likely cause adverse consequences, with little public interest in publication of his name. KiwiRail did not oppose. A temporary non-publication order was made pending further order.
2. Urgency of Interim Application: The Authority applied its standard approach of according urgency to interim reinstatement applications. KiwiRail's objection (that EQX was unfit and had received a medical retirement payment, and no memorandum seeking urgency had been lodged) was rejected as providing no sufficient reason to depart from the standard approach.
3. Seriously Arguable Case – Unjustified Dismissal: The Authority applied the objective fair and reasonable employer standard under s 103A of the Employment Relations Act 2000 and considered the good faith requirements under s 4(1A)(c). Key to the finding was that internal CMO and RMO communications, only disclosed to EQX in March 2026, showed that specialist reviews of EQX's diabetes and OSA — which the CMO had identified as required before a Permanently Unfit classification could be confirmed — had never been carried out. There was also arguable evidence of predetermination, with KiwiRail's rehabilitation manager confirming medical retirement would proceed due to delays in obtaining specialist sign-off rather than actual completion of required assessments. The Authority found it seriously arguable that KiwiRail could not establish incapacity in accordance with the collective agreement and the Standards.
4. Seriously Arguable Case – Permanent Reinstatement: Applying s 125 of the Employment Relations Act 2000 and the practicability and reasonableness test from C3 Limited v O'Brien [2024] NZEmpC 6, the Authority noted that whether reinstatement was practicable and reasonable would largely depend on the substantive outcome. Recent evidence from EQX's doctor suggested he might currently meet the Standards if reassessed, and that his OSA was being treated with a CPAP mask he could tolerate. KiwiRail's health and safety concern was addressed by the fact that EQX could only return to active duty if classified as Unconditional or Review under the Standards. The Authority found a seriously arguable case for permanent reinstatement.
5. Balance of Convenience: The Authority considered multiple factors. On the status quo point, it held the true status quo was EQX as an employee subject to the Standards, favouring EQX, not KiwiRail. There was no delay attributable to EQX; the application was lodged shortly after the internal communications were disclosed in March 2026. On damages adequacy, the Authority accepted that while lost wages could be compensated monetarily, ongoing stress from unemployment risked deterioration of EQX's health, potentially preventing permanent reinstatement — damages would not adequately remedy that. The health and safety risks cited by KiwiRail (relying on Smith v Fletcher Concrete & Infrastructure Ltd [2020] NZEmpC 125 and C3 Limited v O'Brien [2024] NZEmpC 6) were distinguished because EQX could only return to active duties upon meeting the Standards; unlike those cases, the risk was self-managing. The medical retirement payment did not prevent interim reinstatement, though it meant EQX could not rely on hardship. The balance of convenience was found to favour EQX, though not strongly.
6. Overall Justice: The Authority found that overall justice favoured EQX. KiwiRail's concern that reinstatement without completed assessments would undermine its compliance systems was addressed by the fact that EQX could only access those assessments and testing as a KiwiRail employee — interim reinstatement would bring him within that system rather than circumvent it.
7. Interim Reinstatement Order Conditions: The Authority declined to attach conditions to the interim reinstatement order, finding it unnecessary because the National Standards for Health Assessment of Rail Safety Workers would apply automatically, and the parties could co-operate to take appropriate steps under those standards. Attaching conditions that required the Authority to supervise the testing and assessment process would risk creating an interim mandatory injunction, which courts have been reluctant to make absent special circumstances.
8. Costs: Costs were reserved for later determination.

The application for interim reinstatement was upheld; the personal grievance claim on its merits is reserved for a substantive investigation meeting.

Interim reinstatement: EQX is to be reinstated to his position as a Container Terminal Operator by no later than Monday 15 June 2026, pending further order of the Authority and in reliance on EQX's undertaking in relation to damages dated 2 April 2026. No conditions were attached to the order. No monetary remedy ordered at this stage. Costs: reserved.

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[COSTS ONLY]

Applicant: SYI (employee — name suppressed)
Respondent: Candoo Franchising Limited (employer)

Applicant: Allan Halse, advocate (firm not provided)
Respondent: No appearance

This is a costs-only determination following SYI's successful application for a compliance order against Candoo Franchising Limited in earlier proceedings ([2026] NZERA 250). Costs were reserved in the earlier determination, and Candoo failed to file any reply to SYI's costs submissions. The Authority awarded SYI $1,071.55 in costs and expenses.

SYI had previously succeeded in an application for a compliance order against Candoo Franchising Limited (see [2026] NZERA 250). Costs were reserved at the conclusion of those proceedings, with SYI directed to file submissions within 14 days and Candoo given a further 7 days to reply. SYI filed submissions claiming $1,500.00 in representation costs, $150.00 in unspecified disbursements, and $71.55 for a lodgement fee. Candoo filed nothing in response. The Authority proceeded to assess costs on the basis of SYI's submissions alone, noting the absence of detail about the actual costs incurred and charged to SYI.

1. Entitlement to Costs: Whether SYI, as the successful party, was entitled to an award of costs — [Established]
2. Quantum of Representation Costs: What amount of representation costs should be ordered, given the lack of detail about actual costs incurred — [Partially established]
3. Disbursements Claim: Whether the claimed disbursements of $150.00 should be allowed — [Dismissed]
4. Lodgement Fee: Whether the lodgement fee of $71.55 should be allowed — [Established]

1. Entitlement to Costs: As a matter of principle, a successful party is entitled to an award of costs. SYI succeeded in the underlying compliance order application and therefore the Authority accepted that costs should follow the event in SYI's favour.
2. Quantum of Representation Costs: The Authority noted it had not been provided with details of the actual costs incurred and charged to SYI, and it was unclear whether the claim was for indemnity costs. To avoid ordering costs exceeding those actually faced by SYI, the Authority exercised caution and reduced the claimed amount from $1,500.00 to $1,000.00.
3. Disbursements Claim: The claim for $150.00 in disbursements was disallowed because no details were provided about what those disbursements comprised, making it impossible for the Authority to assess their appropriateness.
4. Lodgement Fee: The Authority accepted that the lodgement fee of $71.55 was genuinely incurred and allowed this sum in full, adding it to the costs award.

The costs claim was partially upheld: SYI was awarded $1,071.55 in costs and expenses against Candoo Franchising Limited.

Costs awarded: $1,071.55 (comprising $1,000.00 representation costs and $71.55 lodgement fee). Disbursements claim of $150.00: disallowed. No other remedies ordered (this determination concerns costs only).

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Applicant: Selwyn McDonald (employee)
Respondent: Traffica Roading Services Limited (employer)

Applicant: David Feist, advocate
Respondent: Sanjay Sharma, counsel

Selwyn McDonald, a concrete foreman, was summarily dismissed by Traffica's director during a heated on-site confrontation in May 2024. The Authority found the dismissal unjustified on procedural grounds — McDonald was given no proper opportunity to respond — but rejected his separate unjustified disadvantage claim based on alleged bullying in 2023. Remedies of $15,000 (humiliation) and $6,400 (lost wages) were awarded but reduced by 40% for McDonald's blameworthy conduct, yielding net payments of $9,000 and $3,800 respectively.

McDonald worked as a foreman for Traffica from May 2022 to April 2024. In April 2024 he was involved in a confrontation at a dairy near his worksite while in his Traffica uniform, resulting in a final written warning from director Bashir Ahmed that also noted anger management concerns and road rage incidents. A drug test taken at the same time returned a positive result for THC. On 14 May 2024, during an unplanned roadside conversation on the subdivision site, Ahmed raised ongoing concerns about McDonald's work and refusal to follow instructions; a heated exchange occurred and Ahmed dismissed McDonald on the spot, in front of colleagues including McDonald's son. McDonald claimed the dismissal was unjustified procedurally and also alleged he had been bullied by Ahmed in 2023 meetings about tools and equipment — a claim Ahmed denied. The Authority preferred Ahmed's account of the dismissal incident (including that McDonald made racially offensive comments) but found the summary process was nonetheless procedurally deficient.

1. Unjustified Dismissal: Whether Traffica's summary dismissal of McDonald met the s 103A test of what a fair and reasonable employer could have done in all the circumstances — [Established]
2. Unjustified Disadvantage: Whether McDonald was unjustifiably disadvantaged by Mr Ahmed's alleged aggressive/bullying behaviour during meetings in 2023 — [Dismissed]
3. Lost Wages: Whether McDonald is entitled to reimbursement of lost wages under ss 123 and 128 of the Act, and for what period — [Partially established]
4. Humiliation Compensation: Whether McDonald is entitled to compensation under s 123(1)(c)(i) for humiliation, loss of dignity, and injury to feelings — [Established]
5. Contribution Reduction: Whether any remedies awarded should be reduced under s 124 of the Act for McDonald's blameworthy contributory conduct — [Established]
6. Costs: Whether either party should contribute to the other's representation costs — [Not reached]

1. Unjustified Dismissal: The Authority applied the s 103A test, requiring that an employer sufficiently investigate, raise concerns, give the employee an opportunity to respond, and consider that response before dismissing. Ahmed dismissed McDonald on the spot during an informal roadside exchange, without any proper process. The Authority found this procedural failure was not minor and resulted in real unfairness, regardless of whether substantive grounds for dismissal may have existed. The personal grievance was established.
2. Unjustified Disadvantage: McDonald alleged that Ahmed had been aggressive toward him during 2023 meetings about tools and equipment. The Authority found McDonald had not established this on the balance of probabilities, noting Ahmed denied any aggressive behaviour and that McDonald had not raised it as a complaint at the time. The Authority found it more likely that McDonald's concurrent personal difficulties (family health issues, 2023 Auckland floods) were the true source of his stress, not workplace bullying.
3. Lost Wages: The Authority considered the counterfactual — how long McDonald would have remained employed but for the unjustified dismissal. Evidence from multiple Traffica witnesses showed mounting on-site tension stemming from McDonald's resistance to following inspector and management directions, a position McDonald maintained before the Authority. The Authority concluded that, on the balance of probabilities, McDonald would not have remained employed for more than a further month (citing Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608). At $40/hour for 40 hours/week, one month's lost wages was $6,400 gross (before contribution reduction).
4. Humiliation Compensation: Applying the principles in Richora Group Ltd v Cheng [2018] NZEmpC 113, the Authority assessed the harm caused by the abrupt, public dismissal, which occurred in front of colleagues and McDonald's son. McDonald was required to walk back through the worksite to retrieve his tools, and word of the dismissal spread through the industry via truck drivers present. McDonald's personal vulnerabilities at the time were known to Ahmed. The Authority found an award of $15,000 was just before any reduction.
5. Contribution Reduction: Under s 124, the Authority must consider the extent to which the employee's own blameworthy actions contributed to the situation giving rise to the grievance. The Authority found McDonald's comments to Ahmed (racially offensive language) were seriously blameworthy and materially undermined trust in the employment relationship. Referring to Maddigan v Director-General of Conservation [2019] NZEmpC 190 and Xtreme Dining Limited t/a Think Steel v Dewar [2016] NZEmpC 136, the Authority applied a 40% reduction to all remedies, reducing the humiliation award from $15,000 to $9,000 and lost wages from $6,400 to $3,800.
6. Costs: Costs were reserved. The parties were encouraged to resolve costs between themselves. If not resolved, McDonald may lodge a memorandum on costs within 28 days, with Traffica having 14 days to reply. The Authority indicated it would apply its usual notional daily rate absent special circumstances.

The claim was partially upheld: unjustified dismissal established and remedies awarded with a 40% contribution reduction; unjustified disadvantage claim dismissed.

- Humiliation/distress compensation (s 123(1)(c)(i)): $15,000 gross, reduced by 40% to $9,000
- Lost wages (s 128): $6,400 gross (one month), reduced by 40% to $3,800 gross
- Contributory reduction: 40% applied to all remedies — McDonald's racially offensive comments to Ahmed found to be seriously blameworthy and materially undermining of the employment relationship
- Penalties: None ordered
- Reinstatement: Not sought/not ordered
- Costs: Reserved

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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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