Summary Of ERA Determinations: Week of 24–30 August 2026
Each week the Employment Relations Authority (ERA) publishes its determinations. Below is a summary of the cases determined this week, with key points for New Zealand business owners and employers.
Turner v Big B Cartage Limited — Unjustified dismissal with inadequate investigation and process
David Turner worked as a truck driver for Big B Cartage (trading as Transflora) for less than six months before being dismissed in March 2025 on grounds of alleged workplace bullying. Turner says he was given only seven minutes in a disciplinary meeting with no prior notice of specific allegations or the evidence against him. He was told his employment was terminated immediately after the meeting ended, with a vague offer to respond within 24 hours by email — which he refused, as he was already invoking his legal rights.
The Authority found the dismissal was unjustified because the employer failed all three key procedural tests: it did not investigate properly (providing no details beforehand), did not raise concerns before dismissing (the meeting was far too rushed), and did not give a fair opportunity to respond. Although Turner admittedly sent an aggressive text message to a co-worker that contributed to the problem, the Authority reduced his award by 25% to account for this and ordered Big B Cartage to pay him $9,750 in compensation. The company also breached section 130(2) of the Act by failing to provide Turner’s wages and time record on request, though no separate penalty was imposed.
Legal considerations for employers: Even small businesses must follow fair dismissal procedures. A seven-minute meeting is not a disciplinary process. Employers must disclose allegations in writing beforehand, conduct a proper investigation with time for the employee to prepare, and give a genuine opportunity to respond. Failing to do so will render dismissal unjustified, regardless of the underlying conduct being addressed.
Kennedy v Adulto HR Limited — Costs determination following successful unjustified dismissal claim
This is a brief determination on costs only, following an earlier finding by the Authority (7 August 2026) that Briar Kennedy was unjustifiably dismissed. The investigation meeting took the equivalent of one full day across two half-days. Kennedy sought costs of $4,724.88, comprising a daily tariff of $4,500, a filing fee of $71.55, and a hearing fee of $153.33. Adulto HR agreed to the total amount sought.
The Authority ordered Adulto HR to pay Kennedy $4,571.55. This comprised the full daily tariff of $4,500 plus the filing fee of $71.55, but excluded the hearing fee of $153.33 because the total hearing time did not exceed one day — so no hearing fee was payable under the Authority’s tariff rules.
Legal considerations for employers: When costs are awarded following an unsuccessful defence to an unjustified dismissal claim, the daily tariff approach is standard. Employers should budget for this as part of defending employment disputes. Understanding the daily tariff basis and how it applies can help with accurate cost forecasting in ERA proceedings.
Haitana v Carters Tyre Service Limited — Personal grievance raised too late without exceptional circumstances
Lucky Daryll Haitana was dismissed by Carters Tyre Service in July 2024 following a disciplinary meeting about alleged misconduct. At the end of that meeting, after being told he was being dismissed, Haitana said words to the effect of “see you in court” and “it’s not over yet.” He did not file a formal personal grievance application with the Authority until 29 September 2025 — over 13 months later, well beyond the 90-day statutory deadline.
Haitana applied for leave to raise his grievance out of time, citing exceptional circumstances. He claimed he had instructed a lawyer who subsequently refused to take his case, leaving him unable to proceed. The Authority found this did not amount to exceptional circumstances. Although Haitana experienced genuine emotional distress and financial hardship, the case law establishes that normal effects of dismissal (stress, financial difficulty, mental strain) do not meet the threshold. The Authority also noted Haitana knew within weeks that his lawyer would not act, yet waited nearly a year before filing his own application. The application was declined.
Legal considerations for employers: Employees must raise personal grievances within 90 days of dismissal or when they become aware of the issue. Merely saying “see you in court” is not sufficient notice to an employer. Delays caused by an employee’s own inaction (such as waiting for a lawyer then not acting) will not be excused. Employers can rely on strict time limits to defend claims raised late without exceptional circumstances.
Mulinuu v Civic Waste / WasteCo NZ Limited — Interim reinstatement granted pending substantive dismissal hearing
Vaasaoasaoa Mulinuu was a Health and Safety Advisor who failed to respond to an email from a manager seeking guidance about truck-mounted crane work and chainsaw safety. Mulinuu admitted he should have responded but overlooked the email while managing a heavy workload. The email was not marked urgent, was never followed up, and a later serious harm incident occurred involving a workplace injury. WasteCo dismissed Mulinuu for serious misconduct, arguing his failure breached his employment agreement and destroyed trust and confidence. Mulinuu disputes this characterization and seeks reinstatement.
In this preliminary determination on interim reinstatement only (the full unjustified dismissal claim has not yet been heard), the Authority found Mulinuu had an arguable case for reinstatement if his dismissal was found unjustified. The Authority ordered WasteCo to reinstate Mulinuu to his Health and Safety Advisor role within 21 days, on the basis that he can maintain familiarity with WasteCo’s evolving systems, perform substantive work, and preserve reinstatement as a viable remedy. The Authority noted Mulinuu’s significant personal hardship (caring for elderly parents-in-law, financial stress), the passing of time (which weakens the practical possibility of later reinstatement), and that key personnel have changed at WasteCo. The company must arrange supervision and quality assurance of Mulinuu’s work but cannot exclude him from productive roles.
Legal considerations for employers: Interim reinstatement is available even before a dismissal claim is fully heard if the employee has an arguable case. The balance of convenience test considers the employee’s hardship, the employer’s concerns, and whether the employment relationship can be managed with conditions. Employers must show concrete reasons (not mere assertions) why reinstatement would be unsafe or impracticable, and must use their management prerogatives to set conditions and oversee performance.
Fahmy v Minimarc Childcare Centre — Unjustified dismissal following flawed performance management with conflict of interest
Fatima Fahmy worked as an ECE teacher at Minimarc Childcare Centre for over four years. She raised multiple concerns about her manager Margaret Moss, including allegations of bullying and unfair treatment. Two formal bullying investigations found the complaints unsubstantiated. However, Fahmy’s performance concerns were then pursued through three separate Performance Management Plans (PMPs) over nine months, all conducted primarily by Moss as the centre manager. Fahmy was ultimately dismissed in July 2025 for ongoing poor performance.
The Authority found the dismissal unjustified because, although performance concerns were clearly communicated and improvement opportunities were provided (including training and mentoring), the process lacked objectivity. The centre was fully aware that Fahmy had complained of bullying by Moss and that Moss had refused to endorse Fahmy’s Teaching Certificate renewal — creating an obvious conflict of interest. A fair and reasonable employer would have ensured an independent evaluator assessed Fahmy’s performance, particularly given the deteriorated relationship. Although Fahmy was supported with training and feedback, the fact that Moss remained the primary decision-maker undermined the fairness of the PMPs. The Authority ordered reinstatement (subject to urgent mediation to plan reintegration), lost wages from dismissal until late April 2026 (when Fahmy obtained casual work), and $25,000 compensation for humiliation and injury to feelings.
Legal considerations for employers: When performance managing an employee against whom bullying allegations have been raised, ensure the process is led by an independent manager or external party to avoid perception of bias. Three PMPs with the same manager conducting assessment, despite complaints about that manager’s conduct, will fail the fairness test. Reinstatement is the primary remedy and will be ordered unless truly impracticable — changing personnel since dismissal may make reinstatement practicable.
Guo v NZ Bus Transportation Auckland Corporation — All unjustified disadvantage claims declined; employee not constructively dismissed
Congcong Guo, a bus driver, was assaulted by a passenger in May 2025 and subsequently claimed multiple breaches of his employment rights. His grievances included: being required to attend medical assessments at the company bus depot (which he believed would trigger PTSD), suspension of his ACC weekly compensation when he refused depot-based assessments, lack of input in choosing his treating psychologist, alleged privacy breaches, rostering that breached his medical certificate restrictions, and alleged constructive dismissal following a disciplinary investigation into red-light violations. He also sought outstanding medical invoices ($461.50) and alleged annual leave arrears.
The Authority declined all unjustified disadvantage claims. It found NZ Bus acted reasonably in requiring assessments at a depot, offered alternative depot locations, and had invited Guo to propose security measures — Guo simply did not provide medical evidence that a depot venue would trigger his PTSD. The suspension of ACC payments was Guo’s own doing (non-compliance with ACC requirements), not the employer’s action. The psychologist selection issue was Howden Care’s internal matter, not NZ Bus’s. The rostering error (finishing after the medical certificate’s working hours) was acknowledged but not proven to disadvantage Guo, who worked the shifts without complaint. Guo was not constructively dismissed; he resigned before his disciplinary process concluded, following a first written warning proposal for running red lights. NZ Bus agreed to pay the medical invoices ($461.50) as an ex gratia payment (not admission of liability). All other claims failed.
Legal considerations for employers: Employers acting as accredited ACC employers must require employees to attend return-to-work assessments; refusing to attend without medical evidence of danger is employee non-compliance, not employer breach. Employers are entitled to conduct disciplinary investigations for genuine safety issues (red lights) without this being retaliatory. An employee who resigns before a disciplinary process concludes has not been constructively dismissed.
Honotapu v Atlas Fibrous Plaster Company Limited — Unjustified dismissal due to lack of warning about dismissal risk
James Honotapu had worked for Atlas (on and off over 25 years) and was re-engaged in 2011. He refused to sign the new employment agreement required by law, but Atlas told him the unsigned agreement’s terms would apply anyway. From 2022 onward, Honotapu’s attendance deteriorated markedly. He was absent an average of 1.5 days per week for 49 weeks, then 2.9 days per week in the lead-up to dismissal — often without advance notice and mostly for personal reasons (though he had been diagnosed with diabetes, which he did not disclose). He received a verbal warning in June 2023 and another written warning in August 2023. In July 2024, Atlas invited him to a meeting and asked him to bring a support person. Honotapu attended but was not told dismissal was a possibility. During the meeting, Atlas decided to terminate his employment because Honotapu gave no indication he would change his behavior.
The Authority found the dismissal unjustified because, although Atlas had clear grounds to be concerned and had warned Honotapu multiple times, the process was unfair. Honotapu was not told in advance that dismissal was a possibility, so he did not bring a support person (he declined, not knowing the risk). Once dismissal entered Atlas’s mind during the meeting, Atlas should have stopped the meeting and given Honotapu time to prepare a proper response. Honotapu contributed 50% to the grievance (his persistent unjustified absences) and Atlas contributed 50% (the procedural failure). The Authority awarded $2,574 lost wages (13 weeks × 2 days/week, less 50%) and $6,000 compensation (less 50%), totaling $8,574.
Legal considerations for employers: Even where an employee’s conduct is poor, dismissal must follow a fair process. Employees must be told in advance if dismissal is a possible outcome of a disciplinary meeting, so they can prepare and bring support. If dismissal is being considered during the meeting itself, pause the process and reconvene with proper notice.
Fisher v Todd — Nanny owed wages for overnight hours; sleepover work is work
Nell Fisher was employed as a nanny by Rachael Todd from July 2023 to February 2024 under a fixed-term agreement. The agreement specified 60 hours per fortnight guaranteed, up to 80 hours by prior agreement, at $27/hour, plus a $60 overnight allowance (7pm–7am). Fisher claims she was required to stay overnight and care for Todd’s child when Todd was absent or traveling, but was not paid for those hours beyond the flat $60 allowance. Todd argues Fisher stayed overnight for personal convenience and was never solely in charge; Todd’s father (the child’s grandfather) was present and responsible.
The Authority applied the three-factor “sleepover work” test from Idea Services v Dickinson: constraints on freedom, responsibilities, and benefit to employer. Fisher was constrained (unable to leave a semi-rural property to socialize, required to attend to the child if distressed overnight), bore significant responsibility (acting as primary carer, loco parentis), and her presence benefited Todd (allowing Todd to work and travel). The Authority found Fisher worked overnight and was entitled to pay for those hours. On 30 occasions, Fisher received the $60 allowance but worked 12 hours per night (360 total hours) without hourly pay. The Authority awarded $9,720 gross ($27/hour × 360 hours), plus holiday pay and KiwiSaver on that amount. The $60 allowance was not deducted as it was reasonable compensation for availability under section 67D of the Act.
Legal considerations for employers: Overnight stays at an employer’s premises may constitute “work” and trigger entitlement to hourly wages, not just a flat allowance. Apply the constraint-responsibility-benefit test. Availability provisions are permitted if reasonable but do not eliminate the duty to pay for actual work performed. Employers should clarify in writing whether overnight hours are compensated hourly or by allowance only.
Charandass v Wang — Compliance order and penalty for breach of settlement agreement
Shyam Dass Charandass and Jueqian (Jason) Wang reached a Regulated Settlement (ROS) in December 2025 to resolve employment disputes. The settlement required Wang to pay Charandass $2,460.40 on or by 15 January 2026 and another $2,460.40 on or by 15 February 2026. Wang made only one payment of $2,900 on 19 January 2026, leaving $2,020.80 unpaid as of the Authority’s August 2026 hearing. Wang did not attend the investigation meeting and did not respond to Authority notices.
The Authority issued a compliance order requiring Wang to pay the $2,020.80 outstanding, plus interest accrued from 16 February 2026 (calculated using the civil debt interest calculator). The Authority also imposed a $500 penalty for breach of the ROS, with half ($250) paid to Charandass (recognizing his inconvenience) and half to the Crown. The Authority emphasized that ROS agreements carry serious weight; breaching them without reasonable excuse undermines confidence in the Authority’s dispute resolution function and must be deterred. Charandass was also awarded the Authority application fee of $71.56.
Legal considerations for employers: Settlement agreements certified by the Authority are enforceable through compliance orders. Breaching a settlement exposes the party to compliance orders, interest, penalties, and potential court enforcement (up to $40,000 fine, sequestration, or imprisonment). Parties must treat ROS agreements as binding and pay on time.
