Summary Of ERA Determinations: Week of 12–18 October 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-752: Delivery driver dismissed for multiple at-fault vehicle incidents
Ms Cunard worked as a delivery truck driver for Bidfood from February 2023 until her dismissal in January 2025 for serious misconduct. During her employment, she was involved in 13 “at-fault” incidents in company vehicles, including hitting poles, fences, cars, and building structures. After the first four incidents in April 2023, she received a written warning and was assessed by an external driving trainer who identified problems with her reversing technique and mirror use. Despite this training, similar incidents continued over the following 20 months. In November 2024, she tested positive to a prescribed medication that could impair driving ability. Bidfood suspended her from driving duties and then dismissed her, citing the cumulative pattern of negligent driving incidents and loss of trust in her ability to drive safely.
The Authority found Bidfood’s dismissal was justified. The employer had properly investigated, clearly communicated its concerns to Ms Cunard, given her opportunities to respond, and genuinely considered her explanations before deciding to dismiss. The Authority accepted that Ms Cunard’s explanation for her driving method—counting carpark spaces rather than relying on mirrors when reversing—was a significant concern for an employer making deliveries to places where pedestrians could be present. Ms Cunard’s claim for unjustified dismissal failed, along with her claims for disadvantage related to working hours and unfamiliar routes.
Legal considerations for employers: This case confirms that a pattern of similar incidents, even over a lengthy period, can justify serious misconduct dismissal if the employer properly investigates and the employee has been warned and trained previously. The cumulative nature of the problem, combined with the employee’s failure to recognize the risk their driving posed, were critical to the outcome. Employers in safety-sensitive roles should document incidents carefully, provide targeted training, and ensure employees understand the serious implications of repeated mistakes.
2026-NZERA-753: Cook owed nearly $189,000 in wage arrears and holiday pay
Mr Singh began work as a cook for Blue Moon Sky Limited in September 2023 on a 12-month fixed-term basis. He lived in accommodation provided by the employer and worked seven days per week, often from 12:30pm to 11pm daily. He says he was never given a roster, wages were sporadic and incorrect, he received no rest or meal breaks despite working long hours, and he was given no signed employment agreement. When the employer ceased rostering him for work in November 2025, Mr Singh could not establish contact. He raised his personal grievance well after the 90-day deadline, but the Authority found exceptional circumstances applied because he had no employment agreement containing information about resolving disputes.
The Authority found Mr Singh was unjustifiably dismissed without process or justification. It awarded him $188,947.80 in gross wage arrears (based on a calculated entitlement of approximately 40-50 hours per week at $28/hour), $17,250 for unpaid public holidays, $16,240 for annual leave, and $9,000 for hurt and humiliation. Additionally, the Authority imposed penalties totalling $6,000 against the employer for breaching rest and meal break provisions and the duty of good faith, plus $1,000 to the Crown for failing to provide a signed employment agreement. The employer’s director was found to have aided and abetted breaches and was ordered to pay a $4,000 penalty ($2,000 to the Crown, $2,000 to Mr Singh).
Legal considerations for employers: Failing to provide a signed employment agreement is a serious breach with financial consequences. Employers must provide employees with clear written terms covering hours, pay rates, breaks, and dispute resolution from day one. Non-compliance with rest and meal break legislation is costly and demonstrates a fundamental failure to comply with the Employment Relations Act. Where employees are vulnerable (such as migrant workers on visas), employers must be especially careful to comply with statutory obligations and act in good faith by being communicative and responsive about work arrangements.
2026-NZERA-754: Costs award of $6,500 in mixed-outcome personal grievance claim
Mr Vujcich brought a personal grievance against his former employer Apricity NZ Management Limited (in liquidation) and two individuals. The second respondent, Andrew Meakin, made an unsuccessful application to be struck out as a party early in proceedings. Ultimately, the Authority’s substantive determination found in favour of Mr Vujcich against the employer (awarding $18,000 compensation) but found against him on claims against Mr Meakin and the third respondent, Linden Toll. With mixed success across the parties, the question of costs became complex. Mr Meakin sought costs on the standard Authority daily tariff of $8,000 plus GST, claiming uplift was warranted due to the employer’s lack of representation, unclear pleadings, late amendments, and non-attendance of witnesses. Mr Vujcich argued costs should lie where they fell or be reduced, noting his substantial success against the employer and the difficulty in recovering any award from an insolvent company.
The Authority awarded Mr Meakin $6,500 (no GST) as a contribution to costs. The Authority applied the standard daily tariff as a starting point, treating the matter as a half-day investigation determined on the papers. It rejected Mr Meakin’s claims for uplift, finding that factors such as the employer’s self-representation, pleading amendments, and witness non-attendance were not sufficient to justify additional costs. The Authority noted that costs principles require modest awards and that the unsuccessful strike-out application, while adding some cost, did not justify moving significantly above the tariff. Mr Vujcich’s partial success and potential hardship were considered but did not prevent a costs award entirely.
Legal considerations for employers: Costs awards follow the event, meaning the successful party generally recovers something even in mixed-outcome cases. However, the Authority’s costs awards are modest and incremental factors (like amendments, representation choices, and witness attendance) must be substantial to justify uplifts beyond the standard tariff. Employers should be cautious about pursuing multiple respondents where the evidence against some may be weaker, as mixed outcomes can limit recovery of full costs.
2026-NZERA-755: Interim non-publication order for determination involving legal professionals
A respondent (WZZ), described as a legal professional, applied for an interim and permanent non-publication order in respect of an Authority determination already published on the website. The determination allegedly set out the name of a law firm and its principals, together with serious allegations of unethical practice and a regulatory complaint. The respondent argued that publication had damaged the professional reputation of the principals and caused cultural and family harm. The applicant (YXZ) opposed any non-publication order. The Authority noted that determinations are matters of public record and that parties should be aware of this when proceedings are filed.
The Authority granted an interim non-publication order, temporarily removing the determination from the website and ordering that parties be identified by initials only (with no correlation to their actual names) pursuant to the Employment Relations Act 2000. The Authority noted that a high standard must be met before departing from the principle of open justice, and that such applications are usually made before investigation rather than after publication. Both parties were directed to provide further submissions on whether a permanent non-publication order should be granted, with the Authority to reconsider the matter fully at that stage.
Legal considerations for employers: Employers and their legal representatives should be aware that ERA determinations are public documents. If there are concerns about publication of sensitive information, allegations, or reputational harm, applications for non-publication orders should be made promptly—ideally before proceedings commence or at the earliest opportunity during investigation. The Authority applies a high threshold for non-publication based on open justice principles, and late applications are less likely to succeed.
2026-NZERA-756: Facilitation ordered for collective bargaining in healthcare laboratory services
The Association of Professionals and Executive Employees (APEX) applied for urgent facilitated bargaining with Canterbury SCL Ltd and related companies providing medical laboratory services under long-term contracts with Health New Zealand. APEX and the respondent were negotiating replacement collective agreements for approximately 620 members across multiple roles. The union had already issued a 24-hour strike notice for 2 November 2026 and was balloting for an additional 72-hour strike. APEX alleged the employer had breached the duty of good faith in section 4 of the Employment Relations Act by refusing to bargain on a new collective agreement until agreement was reached on a Bargaining Process Agreement and Life Preserving Services arrangements. The employer consented to facilitation solely on the ground that a proposed strike would likely affect the public interest substantially.
The Authority granted urgency for facilitation under section 50C(1)(d) of the Act on the basis that the proposed strike would likely affect public interest substantially. The Authority found this ground established given the significant union membership, the range of roles covered, and the nature of the services provided (urgent laboratory work under Health New Zealand contracts). The Authority declined to make findings on whether the employer’s conduct amounted to a serious and sustained breach of good faith, finding that matter premature and better addressed through facilitation. The parties were directed to participate in urgent facilitation to be arranged by a different Authority member, with a case management conference to be convened soon.
Legal considerations for employers: In collective bargaining involving essential services or large workforces, strikes proposed to occur may trigger urgent facilitation even where good faith arguments are unresolved. Employers should be aware that public interest considerations (based on the number of members, nature of services, and potential impact on the public) can lead to accelerated Authority involvement. Good faith obligations in section 4 require employers to be active, constructive, responsive, and communicative about bargaining processes and timing.
2026-NZERA-757: Resignation following disciplinary process not constructive dismissal
Ms Sinanaj was employed by Consilium NZ Limited in the Compliance team from March 2022. In late 2023, managers raised informal concerns about her collaboration and work prioritisation. Ms Sinanaj was on leave dealing with personal grief during part of this period, and the company supported remote and flexible working. In March 2025, following a company steps challenge competition (which Ms Sinanaj won by a significant margin), she alleged the team began displaying hostility towards her—what she characterised as “tall poppy syndrome.” After a “clear the air” team meeting on 31 March 2025 that did not resolve tensions, the company commenced a formal disciplinary process. In April 2025, Ms Sinanaj received a letter setting out concerns about her rigidity, lack of collaboration, and inflexibility with team members. She attended a disciplinary meeting, submitted extensive written responses, and met with management multiple times to discuss the issues and provide her perspective. After considering all feedback, the company issued a written warning on 6 May 2025. Ms Sinanaj resigned on 28 May 2025, stating the warning was predetermined and that she faced ongoing unfair treatment in an unsafe workplace.
The Authority found the company’s process was justified and properly conducted. The employer had thoroughly investigated concerns over time, clearly communicated them to Ms Sinanaj, given her multiple and extensive opportunities to respond (including written and oral submissions across several meetings), and genuinely considered her explanations before imposing the warning. The Authority rejected Ms Sinanaj’s claims of bias, discrimination, breach of good faith, unsafe workplace, and harassment. It found Ms Sinanaj’s interpretation of the steps challenge as “tall poppy syndrome” and management hostility was not supported by objective evidence. The Authority concluded that while Ms Sinanaj was candid about the impact on her, she consistently denied responsibility and blamed others. Her resignation was not a constructive dismissal because the company did not breach any duty owed to her. Ms Sinanaj’s claim for unjustified dismissal, unjustified action causing disadvantage, and discrimination all failed.
Legal considerations for employers: Employers conducting disciplinary processes are not breaching good faith or creating an unsafe workplace by raising legitimate concerns about workplace conduct and performance, even if the employee disputes those concerns or experiences emotional impact. A fair process—involving investigation, clear communication, opportunity to respond, and genuine consideration of the employee’s explanation—protects the employer legally. Employers should document concerns as they arise, ensure the employee understands what is being alleged, provide ample opportunity for response across multiple forums if needed, and explain the reasoning behind decisions. An employee’s subjective feeling of unfairness or claimed discrimination does not invalidate a fair process supported by evidence.
2026-NZERA-758: Costs of $3,280 ordered against unsuccessful applicant in jurisdiction case
Ms Ashe brought claims against The Tomarata School Board of Trustees and had also filed claims with the Human Rights Review Tribunal (HRRT) on related matters. The Authority determined in a preliminary decision that Ms Ashe had elected to have her claims heard by the HRRT and therefore the Authority lacked jurisdiction to continue. Ms Ashe was wholly unsuccessful in the preliminary determination. The Board sought costs contributions of $5,610 (its full costs), arguing for indemnity costs on the basis that Ms Ashe had filed complaints with no merit, lacked understanding of jurisdictional issues, and had caused the Board to defend multiple proceedings. The Board also pointed out it had made a settlement offer (which Ms Ashe declined) and had attempted to advise Ms Ashe that her claims were out of time. Ms Ashe argued costs should be reserved pending a challenge to the determination or should lie where they fell, citing her partial funding of the Authority filing fee and receipt of some advocacy advice.
The Authority ordered Ms Ashe to pay $3,280 to the Board as a contribution to costs. The Authority applied the standard half-day tariff (approximately $2,250 based on the normal daily rate of $4,500) as the starting point for a determination on the papers, and applied a small uplift to reflect the Board’s pre-determination attempt to settle costs. The Authority rejected the Board’s claim for indemnity costs or the full amount, finding that the unsuccessful strike-out application, employer self-representation, and pleading amendments were not sufficient to justify such an uplift. The Authority noted that costs are discretionary, modest, and follow the event, but must be reasonable.
Legal considerations for employers: When applicants bring claims across multiple jurisdictions without clarity on which forum is appropriate, employers can recover some costs even if the determination is made on the papers. However, to recover full costs or indemnity costs, the conduct must be seriously unreasonable—not merely mistaken about jurisdiction or procedure. Standard costs awards remain modest. Employers should attempt to resolve costs disputes prior to seeking Authority determination, as this may result in smaller awards to the employer.
2026-NZERA-759: Contractor status upheld—Mr Ryan not an employee of Orbit Marketing
Mr Ryan engaged with Orbit Marketing from May 2020 and became a shareholder, director, and part-owner of the business via a Memorandum of Understanding and later a Shareholders Agreement. He worked primarily as Chief Operating Officer but was not paid by invoice; instead, he received an hourly rate plus profit-share distributions. In October 2023, Orbit drafted an employment agreement stating Mr Ryan had been employed since November 2020, but Mr Ryan never signed it. Orbit said Mr Ryan wanted to retain autonomy in the Wellington region; Mr Ryan said there were unresolved issues including hours, pay, leave, shareholder rights, and company structure that prevented agreement. Mr Ryan also signed a separate Brand Ambassador independent contractor agreement in February 2023. Relations deteriorated following a disagreement with Ms Brown, and mediation in August 2023 (and again in August 2025) failed to resolve matters. Mr Ryan ceased work in May 2026 but retained a 12.5% shareholding. He then claimed he was an employee and was owed unpaid wages and holiday pay.
The Authority found Mr Ryan was not an employee but rather a part owner-operator of the business. The Authority applied the established test: first examining the written and oral terms to identify common intention; second, examining how the work operated in practice; and third, applying common law tests of control, integration, and the fundamental test (whether the person was in business on their own account). The Authority found the common intention was for Mr Ryan to be a business partner via equity ownership, not an employee. Although some factors (such as regular pay and oversight) could suggest employment, the cumulative weight of evidence pointed to contractor status: the MOU and Shareholders Agreement never provided for employment; Mr Ryan received significant profit-share payments (e.g., $30,000 in April 2021) not typical of employees; withholding tax (20% WT code) was applied as for contractors; Mr Ryan signed an independent contractor handbook; Mr Ryan undertook other work as a DJ while with Orbit; and importantly, the employment agreement was never signed, indicating no concluded agreement. Mr Ryan’s claim failed, and the Authority had no jurisdiction to determine his other claims.
Legal considerations for employers: A person’s status as employee or contractor depends on the substance of the relationship, not labels or intentions alone. However, signed agreements carry significant weight. If an employment relationship is intended, a signed employment agreement is critical—an unsigned or unconcluded draft does not establish employment. Ownership interests, profit-share payments, withholding tax treatment, and autonomy in work are factors consistent with contractor status. Where parties dispute status or attempt to migrate from contractor to employee, the absence of a final signed agreement can be determinative. Employers should ensure any employment relationship is properly documented with a signed agreement from the start.
2026-NZERA-760: Matter removed to Employment Court due to nature, urgency, and complexity of confidentiality breach
PNB Limited sought removal of a matter to the Employment Court after the respondents (WJN and YIM), who were employees under 12-month fixed-term agreements following a business sale, were found to have downloaded substantial volumes of PNB confidential information to local storage and external devices, and emailed some information to personal devices. The downloaded data allegedly included passwords, reset information, and highly sensitive material. The respondents admitted downloading and retaining information but said they would return or destroy it. PNB obtained interim injunctive relief from the Authority, requiring forensic examination of devices and irretrievable deletion of information. However, a chain-of-custody issue arose: some devices had passed through the respondents’ solicitors’ hands and a third party, raising concerns about unauthorised cloning. The respondents also raised personal grievances against PNB arising from suspension, device uplift, and access restrictions. PNB sought removal on grounds that the case was of such nature and urgency that it was in the public interest to remove it to the Employment Court, and alternatively, that in all the circumstances the Court should determine the matter.
The Authority granted removal to the Employment Court under section 178(2)(b) (nature and urgency supporting public interest removal) and section 178(2)(d) (residual discretion for the Court to determine). The Authority found that while interim relief had been granted, the forensic examination was incomplete and evidential issues remained unresolved. The case involved unauthorised taking and retention of highly sensitive confidential information with ongoing risk of disclosure to third parties not before the Authority. The complexity included formal discovery disputes, chain-of-custody issues, relevance and privilege questions, and contested factual findings about the extent and handling of data. The Authority also found the Employment Court, with inherent jurisdiction under the High Court Rules 2016 and access to formal discovery, was better resourced than the Authority to address these issues. The Authority noted that preliminary manoeuvres had already been engaged in and that either party was likely to challenge the ultimate Authority decision. Removal would avoid disproportionate costs in further Authority proceedings and allow the Court to direct the matter back to the Authority if preliminary disclosure issues were resolved.
Legal considerations for employers: Employment disputes involving breach of confidentiality, unauthorised data handling, and complex chain-of-custody issues may be removed to the Employment Court if the nature and complexity of the case warrants it. Employers facing such breaches should act swiftly to obtain interim relief (which the Authority can grant) and should be aware that formal discovery and sworn evidence requirements in the Court may be necessary to properly determine complex factual disputes. While the Authority normally handles employment matters, cases involving substantial confidentiality breaches, third-party interests, and public interest considerations can be removed to the Court. Employers should involve employment lawyers early when data security or confidentiality issues arise during employment disputes.
