Summary Of ERA Determinations: Week of 31–6 September 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.
Tracey McMillan v SILC Limited – Timing of personal grievance claims and raising grievances within statutory deadlines
Ms McMillan worked for SILC, a supported living services provider, until her resignation on 24 January 2025. She was suspended and investigated following concerns about Christmas gift vouchers she had allocated to her team. She lodged personal grievance claims in July 2025, outside the 90-day statutory notification period. The key legal issue was whether she had validly “raised” her grievances with SILC before the deadline, as required by employment law.
The Authority found that Ms McMillan validly raised a constructive dismissal grievance through emails from her representative on 24 January 2025, which communicated her view that SILC had breached good faith and destroyed trust in the employment relationship. However, other grievances (about the suspension itself, the remote work refusal, and a flawed investigation process) were not sufficiently communicated to SILC within the 90-day period and are time-barred. The constructive dismissal claim can proceed, along with the related unjustified disadvantage claim about new allegations being added during the investigation.
Legal considerations for employers: Employers must be clearly and sufficiently aware of what grievance an employee is raising for them to respond to it properly. A vague complaint or passing comment may not be enough—the employee must communicate the substance of their complaint in a way that allows the employer to understand what they need to address. If you receive a message suggesting an employee wants to raise a formal grievance, document it carefully and respond promptly to show you took it seriously.
New Zealand Tertiary Education Union v 11 Polytechnics – Facilitation application for multi-employer collective bargaining declined
The TEU sought facilitation from the Authority to resolve bargaining difficulties with 11 polytechnics and institutes of technology across New Zealand. The union wanted to negotiate a single multi-employer collective agreement (MECA), but the employers preferred individual single-employer agreements. The TEU claimed the employers were refusing to bargain in good faith and that bargaining had become unduly protracted, satisfying the legal grounds for the Authority to grant facilitation.
The Authority declined the facilitation application. While noting genuine disagreement between the parties, the member found that only two bargaining meetings had occurred before the application was made, and that extensive efforts including mediation had not yet been attempted as required by law. The employers had articulated reasonable grounds for their preference for single-employer agreements, which under s 33(3) of the Employment Relations Act is a valid reason to oppose a MECA. The Authority directed the parties to continue bargaining and consider mediation as the next step.
Legal considerations for employers: When a union proposes a multi-employer collective agreement, you are entitled to prefer a single-employer agreement if you have reasonable grounds—such as different operational contexts, financial circumstances, or strategic alignment. However, you must still bargain in good faith and be willing to explore solutions collaboratively. Refusing to engage meaningfully or attend mediation could undermine your position if a further facilitation application is made.
Labour Inspector v SSM Investments Limited & Shazneen Khan – Restaurant operator penalised for widespread wage and holiday pay breaches affecting five vulnerable migrant workers
A labour standards investigation found that SSM Investments Limited, a restaurant operator, failed to pay five employees correctly over a period spanning several years. The breaches included failing to pay minimum wages, failing to keep proper wage and time records, and failing to pay annual leave, public holidays, and sick leave entitlements. Three of the five employees were related to the company’s sole director and shareholder, Shazneen Khan. All employees held work visas limited to the Cromwell location but were later directed to work in Auckland, creating vulnerability. Total wage arrears came to approximately $147,000.
The Authority imposed penalties of $90,000 against SSM Investments and $40,000 against Ms Khan as a person involved in the breaches. The member found the breaches were negligent rather than intentional, but serious given the vulnerable nature of the workforce, the significant sums involved, and the company’s failure to maintain proper records. Ms Khan had agreed to meet the arrears from house sale proceeds held following court-ordered freezing orders, which the Authority treated as partial reparation when assessing her personal penalty.
Legal considerations for employers: Proper wage and time record-keeping is non-negotiable and must cover all hours worked, including when employees work at different locations than their visa specifies. Migrant workers and family members may be particularly vulnerable, making it even more critical to follow employment standards scrupulously. Penalties for wage breaches are substantial and can attach personally to directors who are knowingly involved. If you cannot pay penalties immediately, the Authority may consider your financial hardship, but you cannot avoid liability simply because you are struggling financially.
Avinash Singh v Windcave Limited – Costs award where applicant unsuccessfully claims personal grievances but employer succeeds on counterclaim
Ms Singh worked for Windcave and brought personal grievance claims for unjustified disadvantage and unjustified dismissal. The Authority dismissed her claims but upheld the company’s counterclaim that Ms Singh had accessed confidential company information without authority and emailed it to herself and others. This determination addressed only the question of what costs the unsuccessful applicant should contribute toward the company’s legal expenses.
The Authority ordered Ms Singh to pay costs of $8,000 as a contribution toward Windcave’s actual and reasonable costs. The member applied the standard tariff for a full-day investigation meeting ($4,500) plus a further half-day for supplementary hearings and digital retrieval activities ($1,500), then uplifted the total to $8,000 to reflect that Ms Singh’s own conduct in unlawfully accessing and disseminating confidential information had unnecessarily increased the company’s costs. Although Ms Singh was largely unrepresented, the unlawful conduct occurred when she was legally represented, and the Authority’s intervention to remove the data from her work device likely spared her from facing a penalty.
Legal considerations for employers: When an employee loses a personal grievance claim and you succeed on a counterclaim, you are likely to recover a contribution toward your costs, particularly if the employee’s conduct unreasonably increased the expense of defending the matter. Unauthorised access to confidential data is especially serious and may result in a higher costs award. Courts and the Authority consider modest daily rates but will uplift awards where an employee’s blameworthy conduct inflated costs.
JXU v AEC Design Studio Limited – Brief casual employment ended summarily after business card dispute; unjustified dismissal found with reduced compensation
JXU was engaged as a casual intern for a single weekend (12–14 September 2025) to assist an architectural design company at an exhibition stand. She was promised minimum wage and told to photograph business cards and send them to her employer. During the second day of work, after she insisted on being given back a business card so she could photograph it for proof of work, her employer became angry, asked her to leave, and when she refused, had security escort her from the venue. She was not paid for any of the work she performed.
The Authority found JXU was unjustifiably dismissed because her employer provided no reason for the dismissal and followed no disciplinary procedure—she was simply removed by security following an altercation. The member ordered AEC to pay unpaid wages of $446.50, holiday pay of $35.72, and compensation for humiliation and injury to feelings of $12,000 (reduced to $9,000 after a 25% contribution reduction because JXU’s refusal to accept her employer’s instruction about the business card contributed to the conflict). The Authority also imposed a $2,000 penalty on AEC for breaching employment standards and ordered the company to pay $2,250 toward JXU’s legal costs. Mr Lee, the sole director, was made jointly and severally liable for the unpaid wages and compensation if AEC could not or would not pay.
Legal considerations for employers: Even brief casual engagements trigger full employment obligations—you must pay wages due, provide a written agreement, keep wage records, and follow fair process if dismissal becomes necessary. A summary dismissal without warning or procedure is unjustified unless there is serious misconduct, and a disagreement about a work task does not justify removal by security. Directors can be held personally liable for unpaid wages and compensation owed by their company if the company fails to pay.
Amanda Bradley v Fire and Emergency New Zealand – Costs lie where they fall in mixed-success dispute over collective agreement interpretation
Ms Bradley brought a personal grievance claim disputing her employer’s interpretation of a collective agreement provision on superannuation access. She also alleged poor communication and unjustified actions that breached good faith obligations. The Authority awarded her $5,000 compensation for the good faith breach but rejected her primary claim that the collective agreement entitled her to access a restricted workplace savings scheme called FireSuper. Both parties had partial success and both sought costs contributions.
The Authority declined to award costs to either party and held that costs should lie where they fall. Although Ms Bradley succeeded in part, her main claim failed. The member noted that matters involving disputes about the interpretation or operation of collective agreements are treated differently under the Authority’s practice, and that costs normally lie where they fall in such disputes unless there are compelling reasons otherwise. While Ms Bradley’s approach shifted during proceedings and FENZ submitted significant additional costs were incurred, the member found the overall dispute was primarily about a collective agreement issue and neither party’s conduct was sufficiently unreasonable to justify a costs award.
Legal considerations for employers: Disputes about what a collective agreement means are treated differently from other employment disputes when deciding costs. Even if you win most of the issues, you may not recover your legal costs if the dispute centres on contract interpretation. Be transparent about your reasoning for interpreting agreement clauses and maintain good communication with employees about their rights—a breach of good faith can still attract a compensation award even if the employee loses on the main contractual point.
Tsui-Ling Fan v Klinh Limited – Multi-issue determination on wage arrears, holiday pay, public holidays, and unjustified dismissal; substantial remedies awarded
Ms Fan worked at a takeaway business (Buns n Rolls) from July 2022 to 4 December 2024. She claimed she was not paid correctly for hours worked, was not paid for annual leave, sick leave, and public holidays when she should have been, and was unjustifiably dismissed. Her employer, Klinh Limited, disputed the wage arrears and claimed Ms Fan was dismissed for serious misconduct (assaulting a colleague and using offensive language) following a prior incident in May 2024. A signed employment agreement was only provided in November 2022, although Ms Fan claims she started work in July 2022.
The Authority found Ms Fan was unjustifiably dismissed because Klinh failed to investigate properly, did not inform her of the allegations against her before the dismissal meeting, did not give her a support person or proper notice that dismissal might result, and did not follow fair procedure. The member awarded arrears totalling $11,424 for unpaid wages, $8,795.47 for unpaid holiday pay, $280 for unpaid sick leave, and $2,912 for underpayment of public holidays. Compensation for humiliation and injury to feelings was set at $14,000, and reimbursement of lost wages (lost remuneration) was awarded at $14,560. A penalty of $2,500 was imposed on Klinh for breaching the Wages Protection Act, and Ms Fan was awarded $2,500 toward her costs. The Authority found no basis to award costs separately to the employer under s 142Y against the second respondent, Ms Vu.
Legal considerations for employers: Proper investigation and fair procedure are essential before dismissal, even for serious misconduct allegations. You must give the employee written notice of the allegations, allow them a reasonable opportunity to respond, and follow a fair process. Dismissing someone verbally without investigation or proper procedure is unjustified and exposes you to substantial compensation and penalty awards. Wage arrears and holiday pay obligations cannot be avoided by claiming misconduct—you must pay all entitlements when due unless there is a lawful right to withhold (which is rare). Keep detailed wage records from day one and ensure all employees receive a written agreement promptly.
GSL v Chief Executive of the Department of Corrections – Transfer to different work unit does not amount to unjustified disadvantage; technical good faith breach found but no penalty warranted
GSL worked as a Corrections Officer at a correctional facility and was also seconded to a Senior Corrections Officer role. An external investigation into workplace matters exonerated him of wrongdoing. Nevertheless, his manager transferred him from Unit A to Unit B within the same facility. GSL claimed he was unjustifiably disadvantaged by this transfer and that Corrections breached good faith by not disclosing the existence of the investigation or providing adequate explanation for the move.
The Authority found no unjustified disadvantage because, while GSL was unhappy with the transfer, there were no material disadvantageous consequences to him—his pay, role title, and roster remained unchanged. The member noted that a personal grievance requires objective disadvantage, not merely subjective dissatisfaction. Regarding good faith, the Authority found a technical breach: Corrections failed to disclose the existence of the external investigation to GSL’s manager before the transfer decision was made. However, this breach was not deliberate, serious, or sustained enough to warrant a penalty. The member also rejected GSL’s claim that Corrections acted for an ulterior purpose, finding instead that the transfer was motivated by operational and safety considerations and that Corrections had consulted with GSL about it.
Legal considerations for employers: Not every internal transfer or reorganisation triggers a personal grievance claim. You must consult with the employee before implementing a transfer, but disagreement with a lawful and reasonable decision does not establish a breach of good faith. Transparency about any investigations or concerns is important—failing to disclose relevant background information can constitute a technical breach of good faith even if the decision itself is sound. A technical breach alone may not warrant penalties if it was not deliberate or sustained, but it is better to be open and honest from the start.
ZKP v SQU – Consent determination where parties reach settlement; employment relationship problem resolved by agreement
The parties to this employment relationship problem reached a settlement and agreed to resolve the matter by consent determination. The Authority recorded the terms of their settlement as binding orders under the Authority’s jurisdiction. The specific details of the employment relationship problem and settlement terms are subject to a non-publication order, protecting the privacy of both parties.
By consent, the Authority made orders reflecting the settlement agreement between the parties. Neither party is identified in the public determination, and the settlement contents remain confidential. This reflects the Authority’s support for parties resolving disputes informally and avoiding prolonged investigation where both sides agree on a way forward.
Legal considerations for employers: Settlement and mediation are often faster and less costly than a full hearing. If you can reach agreement with an employee on how to resolve a dispute, you can apply to have it recorded as a consent determination, which becomes binding and final. Non-publication orders protect sensitive business and personal information from public disclosure. Early engagement with settlement discussions, often through mediation, is encouraged and can save significant time and legal costs.
Li Wu v Awa 2001 Limited (formerly Mars Living Construction) – Claims cannot proceed against employer in liquidation; wage arrears partially established but limited remedies available
Mr Wu claimed wage arrears, unpaid rest and meal breaks, and public holiday underpayments from his former construction employer. He also sought compensation for unjustified disadvantage and constructive dismissal. The employer, Mars Living Construction Limited, changed its name to Awa 2001 Limited in August 2024 and was placed in liquidation in February 2025. Mr Wu’s application was filed before liquidation but progressed very slowly due to disputes about liability and the need to obtain the liquidator’s consent for personal grievance claims to proceed against an entity in liquidation.
The Authority found that Mr Wu’s personal grievance claims cannot proceed because the liquidator has not consented to the claims being brought, as required by the Companies Act. Regarding wage arrears, the Authority found Mr Wu was paid correctly for most periods, but was underpaid $529.92 in October 2023 due to an incorrect pay rate and was not paid termination holiday pay. The member rejected Mr Wu’s claim that Bo Zhang directly employed him (as opposed to the company) because the work visa, employment agreement, and wage payments were all in the company’s name, and Mr Wu had minimal direct dealings with Mr Zhang personally. The member advised Mr Wu to register with the liquidator as a creditor for his wage arrears and termination holiday pay claims.
Legal considerations for employers: When a company enters liquidation, employees’ personal grievance claims must obtain the liquidator’s consent to proceed, which can be a significant hurdle. Ensure accurate wage records and pay rates are maintained from the outset—underpayment claims can attach long after the fact. If your company enters liquidation, employees may pursue unpaid wage claims through the liquidation process by registering as creditors. It is important to distinguish clearly between the company as employer and owners/directors personally, as courts will not easily pierce the corporate veil based on minimal personal involvement.
