Summary Of ERA Determinations: Week of 21–27 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.
2026-NZERA-682: Joost v Caltado Missio — Costs award where employee claim fails against company directors
Christo Joost brought a claim against three individuals (Caltado Missio, Peter Win, and Bruce Whall) seeking to hold them personally liable for employment breaches by their company, Aether Pacific Pharmaceutical Limited, which was in liquidation. The Authority had already determined in an earlier decision that these individuals were not personally liable for the breaches. This determination addressed only the issue of costs following that substantive outcome.
The Authority ordered that Joost pay Missio and Win $2,250 (in total) as a contribution toward their legal costs. This was calculated as half a day of the daily tariff at $4,500 per day, reflecting the half-day investigation meeting. Although Joost argued costs should lie where they fall due to the company’s liquidation leaving him with limited recourse, the Authority found this was an unremarkable employment relationship problem with no unusual features justifying that outcome.
Legal considerations for employers: Directors should be aware that personal liability claims against them for company breaches can be defended, and successful defendants may recover a modest contribution toward their legal costs. However, the Authority’s approach remains to award costs on a restrained basis. Business owners facing personal grievance claims should ensure they have proper legal representation early on, as costs awards are modest but nonetheless recoverable.
2026-NZERA-683: Zawadzki v Hydroxsys (NZ) Limited — No binding settlement reached despite extended negotiations
Jan Zawadzki and Hydroxsys (NZ) Limited engaged in settlement negotiations over wage arrears and expenses. On 17 July 2026, Hydroxsys made a Calderbank offer comprising eight months’ salary, shares in the company, and other payments. The parties exchanged offers and counteroffers through July and August 2026, but disagreement arose over the terms of a share options agreement and the vesting of shares, which was a key component of the original settlement proposal.
The Authority determined that there was no binding settlement agreement between the parties. Although correspondence referred to two separate agreements (one for wages and one for shares), shares were clearly part of the settlement from the outset. Because the parties did not reach a meeting of minds on the share component, the unsigned Record of Settlement could not be enforced as binding. The matter proceeded to an investigation meeting. Costs were reserved pending determination of the substantive issues.
Legal considerations for employers: Settlement negotiations require clarity on all material terms, particularly where settlement packages include multiple components such as cash and equity. Unresolved disagreements over key terms—even if other elements are agreed—will prevent a binding settlement from forming. Employers should ensure settlement discussions are comprehensive and all essential terms are explicitly agreed before relying on a settlement as final.
2026-NZERA-684: Nikolao v Waikato Regional Council — Costs reduced despite successful defence of record of settlement challenge
Itania Nikolao sought to challenge a record of settlement with the Waikato Regional Council (WRC), arguing the Authority should amend the settlement terms. Nikolao was self-represented throughout the proceedings. The Authority determined in an earlier decision that Nikolao had not established grounds to amend the settlement. WRC, as the successful party, applied for costs of $3,750 plus GST ($4,312.50), arguing Nikolao’s case was fundamentally misconceived and that she had added to costs by amending her claims and rejecting settlement offers.
The Authority ordered Nikolao to pay WRC $2,700 as a contribution to costs. Although WRC was successful, the Authority found that a full indemnity costs award was not justified. The Authority noted Nikolao’s financial hardship (unemployed since late 2023) and rejected WRC’s argument for enhanced costs based on conduct, though it did acknowledge Nikolao’s approach had required more communications than usual. Payment was extended to 50 days to allow Nikolao to make financial arrangements.
Legal considerations for employers: Even when an employer successfully defends a record of settlement challenge, costs awards remain modest and the Authority considers the personal circumstances of self-represented claimants. Employers should not assume that a successful outcome will generate a full recovery of legal costs. Offers to settle (including Calderbank offers) should be clearly communicated, but rejection of such offers does not automatically justify higher costs awards.
2026-NZERA-685: Lin v Ritchies Transport Holdings Limited — Interim reinstatement refused for bus driver assessed as unsafe
Shan Bin Lin was employed as a bus driver by Ritchies Transport Holdings Limited. After undergoing training and three independent driving assessments, all three assessors (including an external driving academy assessor) concluded Lin had not demonstrated the competency required to safely operate a passenger bus independently. Specific concerns included harsh braking, excessive speed, poor navigation of roundabouts, improper lane positioning, and poor hazard perception. Lin had been offered further cleaning work and then paid leave at full rate, but his employment was terminated on 13 July 2026 when he could not demonstrate the required safety standards.
Lin applied for interim reinstatement pending a full investigation of his unjustified dismissal claim. The Authority found Lin had an arguable (though not strong) case for unjustified dismissal because Ritchies did not follow a formal performance improvement or warning process before dismissing him for lack of competency. However, the Authority refused interim reinstatement. Although Lin could demonstrate some arguable case for reinstatement in principle, the evidence of safety risk and the practical difficulty of reintegrating him into a training role (with trainers who had expressed serious safety concerns) meant reinstatement was not a reasonable or practicable outcome at this stage. Damages were considered an adequate remedy. Costs were reserved and the parties were directed to mediation within 20 working days.
Legal considerations for employers: Employers dismissing employees for lack of fundamental competency (as opposed to poor performance) must still follow fair procedures, including raising concerns in writing and giving the employee a reasonable opportunity to respond before terminating. However, multiple independent assessments of safety risk create a strong defence against reinstatement claims, even if procedural steps were imperfect. Transport and safety-critical roles receive particularly careful scrutiny, and safety concerns may outweigh procedural defects in assessing reinstatement feasibility.
2026-NZERA-686: Jonker v Wainuiomata High School Board — Costs award at standard daily tariff rate after interim reinstatement refusal
Darin Jonker applied for interim reinstatement after his employment with Wainuiomata High School Board was terminated. The Authority declined his interim reinstatement application in a substantive determination. Jonker sought to have costs lie where they fall, arguing his application was not improper or unreasonable. The Board, as the successful party, applied for costs and sought the full daily tariff of $4,500.
The Authority awarded the Board $4,500 as a contribution to costs, applying the standard daily tariff for a one-day investigation meeting without adjustment. The Authority found that neither party had acted in a way that unreasonably prolonged matters. Although Jonker’s case was unsuccessful, his pursuit of interim reinstatement was a legitimate legal step and did not constitute improper conduct. The Authority applied its standard modest costs regime without uplift or reduction.
Legal considerations for employers: The Authority’s costs regime is modest and predictable, based on notional daily tariffs. Even where an employer succeeds against an employee’s application, costs are awarded on a restrained basis calculated by reference to the time spent. Employers should budget for modest costs contributions rather than expecting to recover full legal fees. The daily tariff provides certainty and is not readily adjusted upward or downward absent exceptional circumstances.
2026-NZERA-687: Adams v EverEdge Global Ltd — Costs awarded to successful employee despite late disclosure of employment agreement
Paul Adams was constructively dismissed by EverEdge Global Ltd. The Authority determined Adams was unjustifiably dismissed and awarded him seven months’ lost wages and $30,000 compensation. At the investigation meeting, Adams initially relied on a 2014 employment agreement but did not disclose a February 2024 agreement and assignment letter until his witness statement in January 2026—some 14 months after filing his claim. EverEdge then withdrew a counterclaim at the start of the investigation hearing.
Adams sought costs of $8,000 based on a one-and-a-half-day investigation meeting plus written submissions. EverEdge opposed costs, arguing Adams should be disentitled due to his failure to disclose the 2024 agreement and assignment letter. The Authority awarded Adams $8,000 as a contribution to costs. Although the late disclosure was concerning, the Authority found it did not establish a basis for disentitlement because the impact on costs was not clearly established. EverEdge could have sought further mediation once it received the 2024 documents in January 2026, months before the April investigation meeting. The Authority also noted that EverEdge’s withdrawal of its counterclaim at the hearing had itself created some additional work.
Legal considerations for employers: Late disclosure of documents does not automatically disentitle a successful employee from costs. Employers must establish actual prejudice and cost impact from any late disclosure. Withdrawing counterclaims immediately before an investigation meeting can be viewed as adding to costs and may factor into the Authority’s costs assessment. Employers should seek to resolve matters through settlement discussions once new information emerges, rather than proceeding to a full hearing.
2026-NZERA-688: OTH v IRV — Consent determination with non-publication order
The parties in this matter reached agreement on the terms of their settlement. The Authority issued a consent determination, making the settlement agreement’s terms enforceable orders of the Authority. A non-publication order was made prohibiting the release of the parties’ names, witness names, identifying information, and the terms of the settlement. The Authority held the original signed settlement agreement on file rather than attaching it to the public determination.
This determination highlights the Authority’s practice of facilitating settlement between parties and protecting the confidentiality of settlement terms where the parties request it. No substantive legal issues were determined; the Authority simply recorded the parties’ agreed resolution as binding orders.
Legal considerations for employers: Parties can negotiate confidential settlements before the Authority and request non-publication orders to protect the terms of settlement from public disclosure. This allows employers and employees to reach agreement without creating precedent or public record of the dispute terms. Settlements must still result in Authority-issued orders to be enforceable, even where the terms themselves are confidential.
2026-NZERA-689: Thakkar v LS Travel Retail New Zealand Limited — Wage calculation dispute and reduced costs award
In an earlier determination, the Authority found Nisha Thakkar was unjustifiably disadvantaged due to LS Travel’s failure to provide her guaranteed 40 hours per week at her contracted times (Tuesday to Saturday, 12:30 pm to 8:30 pm). The substantive decision awarded compensation and required wage shortfall payment. However, the parties disputed how to calculate the actual amount owing. Thakkar claimed $10,304.78 gross (including holiday pay), while LS Travel argued only $4,380.60 was due and had already paid that amount. Thakkar also sought costs of $6,250 plus a 20% uplift, while LS Travel sought costs of $2,250.
The Authority clarified that Thakkar was entitled to payment for the difference between 40 hours per week and hours actually worked in any week where a shortfall occurred, not payment for hours worked outside her contracted times plus her guaranteed minimum. This interpretation prevented Thakkar from receiving a “windfall” by being compensated twice for the same period. The Authority found LS Travel had already complied with the substantive award. On costs, the Authority awarded Thakkar $3,500 (reduced from $6,250) because LS Travel’s settlement offer of $10,000 was close to what Thakkar ultimately received. Had Thakkar accepted the offer, she would have avoided investigation meeting costs and subsequent legal work. The Authority also reimbursed the filing fee of $71.55.
Legal considerations for employers: Settlement offers made before investigation meetings should be taken seriously by employees; rejection of reasonable offers can result in reduced costs awards. Employers should ensure wage calculations comply with Authority determinations promptly and accurately. Disputes over calculation methodology should be resolved by reference to the plain language of the substantive determination, and employers should not assume calculations have been completed correctly without verification. Even partly successful parties may see reduced costs awards if they rejected reasonable settlement offers.
2026-NZERA-690: Ashe v The Tomarata School Board of Trustees — Jurisdiction declined where same claims pending in Human Rights Review Tribunal
Janet Ashe was dismissed from Tomarata School on 17 June 2022. On 14 November 2022, she raised a personal grievance alleging unjustifiable disadvantage. On 9 June 2023, she filed a complaint with the Human Rights Review Tribunal (HRRT) under the Human Rights Act 1993, alleging the Board had filed an unjustified mandatory report with the Teaching Council, retaliated for protected disclosures, refused mediation, unjustifiably terminated her employment, and committed other breaches. On 10 December 2025—over three years after her dismissal—she lodged a Statement of Problem with the Authority raising substantially the same allegations.
The Authority found that Ms Ashe’s claims before the Authority were the same subject matter as those before the HRRT. Section 112 of the Employment Relations Act 2000 requires employees to choose either the Authority or the Human Rights Review Tribunal when circumstances give rise to both a personal grievance and a potential Human Rights Act complaint. The Authority determined that Ms Ashe had made her election to pursue the matter through the HRRT (by filing there on 9 June 2023) and therefore the Authority had no jurisdiction to hear her claims. The Authority did not determine the separate question of whether claims had been raised outside the statutory time limit. Costs were reserved pending possible further application.
Legal considerations for employers: Employees who file complaints with the Human Rights Review Tribunal cannot later pursue the same subject matter before the Authority. The “same subject matter” test looks at the underlying grievance, not merely common facts or documents. Employers should be aware that once a Human Rights complaint is filed, the Authority’s jurisdiction is excluded for those claims. Attempts by employees to amend Human Rights complaints to narrow their scope in order to pursue related claims elsewhere will be scrutinised, and the Authority will respect the employee’s election of forum once made.
2026-NZERA-691: Connors v The Vice Chancellor of the University of Otago — Costs award for successful application to dismiss frivolous claim
Dr Duncan Connors lodged an employment relationship problem with the University of Otago that was determined to be frivolous and having no prospect of success. The University applied to have the claim dismissed before an investigation meeting and was successful. Dr Connors had submitted 22 pages of submissions and 350 pages of supporting material in response to the University’s application. The University sought costs of $6,750, comprising the full daily tariff of $4,500 plus a 50% uplift based on the meritless and frivolous nature of the claim and Dr Connors’ alleged willingness to breach confidentiality and mediation privilege.
The Authority awarded costs of $3,375, representing three-quarters of a one-day investigation meeting tariff. The Authority found that although the application was complex and Dr Connors had submitted a large volume of material, the work did not equate to a full one-day investigation meeting. The Authority accepted there was additional work due to the volume of material but incorporated this into the three-quarter day assessment rather than applying an uplift. The Authority declined to impose an additional uplift based on conduct, noting that while Dr Connors’ conduct (including alleged breach of confidentiality) was concerning, costs awards in the Authority are not punitive and should not be used as a sanction or deterrent.
Legal considerations for employers: Successful applications to dismiss frivolous claims result in modest costs awards, calculated by reference to the work involved relative to a full investigation meeting. Large volumes of submissions do not automatically justify full daily tariff awards or uplifts. The Authority will not impose punitive costs based on bad conduct in pursuit of an unsuccessful claim; costs awards reflect actual work done, not disapproval of a party’s approach. Employers successfully defending against frivolous claims should budget for costs recovery at around three-quarters to one day’s tariff, depending on the complexity of the application.
