Summary Of ERA Determinations: Week of 19–25 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-774: New Zealand Police Association – Drug and Alcohol Policy Consent Requirements
The Police Association sought to enforce what it claimed was a binding 2017 agreement requiring Police to obtain the Association’s consent before making changes to a Drug and Alcohol Policy. The Association argued that a letter from Police dated 7 March 2017 created an ongoing contractual obligation that any policy changes must be “mutually acceptable” to both parties. Police argued the letter was not binding, and that any commitment ended once the initial policy was finalised in 2019. This case turned on whether informal correspondence about policy development could create enforceable contractual rights beyond the initial policy creation.
The Authority found that the 7 March 2017 letter was not a binding contractual term and did not create ongoing obligations beyond the development of the 2019 policy. The letter’s commitment to work “collaboratively” applied only to the development phase, not to future amendments. Once the 2019 policy was introduced, it became the controlling document, and its own provisions (which required consultation but not consent for amendments) superseded the earlier letter. The Authority dismissed the Association’s application and will now consider other matters including whether breaches of good faith occurred.
Legal considerations for employers: Informal written communications about policy development may not create enforceable ongoing contractual obligations, even if they refer to “mutual agreement” or “collaboration.” Once a formal policy is implemented containing its own amendment procedures, those procedures will typically govern future changes. Employers should ensure formal policies clearly specify what process applies to amendments and avoid language in preliminary communications that could be interpreted as creating perpetual veto rights over future changes.
2026-NZERA-775: Buildforce NZ Limited – Wage Arrears, Shift Cancellations and Constructive Dismissal
Mr Zhengbin Su worked as a construction labourer for Buildforce, initially on cash payments, then through an app-based time-tracking system. His employment involved periods of paid and unpaid breaks, varying weekly hours, and payment to both bank account and cash. Buildforce struggled to maintain accurate time records, losing access to records from the first app and producing conflicting versions of hours worked in the second app. When work dried up in early 2025, Mr Su was told there was “very little work” available and encouraged to find alternative employment. After months without offered work, Mr Su resigned in May 2025, claiming he was owed arrears of wages and leave entitlements totalling over $13,000.
The Authority found Buildforce owed Mr Su $13,196.84 in unpaid wages and leave entitlements across multiple pay periods. It also found Mr Su was unjustifiably dismissed through constructive dismissal—the lack of work constituted a serious breach of Buildforce’s obligation to offer him guaranteed 30 hours per week under his employment agreement. The Authority awarded Mr Su $18,000 gross in lost wages (covering the period from resignation until he obtained new employment), $12,000 compensation for hurt and humiliation, a $3,000 penalty for breaches of the Holidays Act and Wages Protection Act, and interest on arrears. The director Mr Jing was found to be a person involved in breaches of employment standards, giving Mr Su leave to pursue recovery from him personally if Buildforce cannot pay.
Legal considerations for employers: Employers must maintain accurate, accessible time and wage records for all employees—losing access to payroll data is a serious compliance failing. Telling an employee there is “very little work” but not formally varying or ending their employment agreement may constitute constructive dismissal if the employer is not meeting guaranteed minimum hours. Directors can be personally liable for employment breaches if they are knowingly involved in breaches of employment standards, particularly where they are actively involved in day-to-day operations and aware of the breaches occurring.
2026-NZERA-776: General HVAC Solutions – Unauthorised Transfer of Confidential Information
Ms Angeline Gunning, a Business Development Manager, sent three emails to her personal email address on 7 July 2025 containing substantial confidential information belonging to HVAC Solutions, including the entire active customer list, new account details, call cycles and territories. She did so without authorisation the morning before her final day of employment. Ms Gunning was experiencing significant mental health difficulties at the time and describes it as “the lowest point of my life.” She provided undertakings the same day and later that she had deleted the information and would not use or share it. HVAC Solutions sought penalties for breach of her employment agreement’s confidentiality clause, claiming the three separate emails constituted three separate breaches liable to penalties of up to $30,000 total.
The Authority found Ms Gunning had breached her employment agreement by sending confidential information to her personal email without authorisation. However, it treated her actions as a single globalised breach rather than three separate breaches, as they formed one course of conduct with the same motivation and state of mind. The Authority imposed a penalty of $4,800 (60% of the $10,000 maximum, then reduced by 20% for her limited financial means, mental health circumstances, and prompt remedial action). It also ordered her to pay $2,250 toward HVAC Solutions’ costs. The Authority found the breach was serious and intentional, but was satisfied she did not use or share the information and took prompt steps to remedy matters.
Legal considerations for employers: Unauthorised removal of confidential business information is a serious breach of employment obligations even if the employee does not use or share it. However, penalties may be moderated where the employee cooperates promptly, shows genuine remorse, and has limited means. When multiple similar actions occur in quick succession as part of one course of conduct, they may be treated as a single breach rather than separate breaches, which can significantly reduce the maximum penalty exposure.
2026-NZERA-777: James King v Kingston Offshore Services – Casual Employee Status and Contractual Expectation
Mr James King was offered work as a cook on a vessel operated by Kingston Offshore Services (KOS), initially told by the General Manager Ms Stanway that the work would last “3 to 5 years.” He raised concerns about accepting short-term casual work when he had permanent employment elsewhere, and Ms Stanway confirmed via text that the opportunity was for “3 years and expect to be 5.” Mr King signed a written casual employment agreement for a single 28-day voyage but asked KOS to provide a letter to his bank stating his employment was for three years to support a mortgage application. KOS provided that letter, referring to a three-year contract and annual salary of $130,000. After his first 28-day period, KOS declined to offer further work, relying on the casual nature of the written agreement.
This was a preliminary determination on the issue of employment status only. The Authority found Mr King was a permanent employee, not a casual employee. The Authority reasoned that Mr King had explicitly told Ms Stanway he would not accept short-term work, she responded confirming 3 to 5 years of work was available, and Mr King acted in reliance on that assurance by arranging his affairs (including obtaining a mortgage) and resigning from permanent employment. The letter to the bank stating an annual salary and three-year contract reinforced this understanding. The Authority found KOS’s later argument that only 28 days of work was ever intended was inconsistent with the communications it had made to Mr King. The matter will proceed to further case management to address the substantive claims.
Legal considerations for employers: Formal written employment agreements stating “casual” status may not prevail if pre-contractual representations and conduct suggest a longer-term arrangement. If an employer tells a prospective employee that work will last several years and the employee reasonably acts in reliance on that (such as resigning from permanent employment), a court may find a permanent employment relationship exists regardless of the formal agreement’s wording. Employers should ensure all communications to job applicants are consistent with the actual employment offer, and avoid providing letters to banks or other third parties that contradict the true contractual position.
2026-NZERA-778: Natalie Plows v Bidfood Limited – Dismissal Following Alleged Racist Comment and Confidentiality Breaches
Ms Natalie Plows, an HR Manager at Bidfood, made a comment describing a manager as “typical Asian” during a workplace conversation. Two other co-workers overheard and complained. She was not at the time accused of racism by the manager she was speaking to, who apparently had a friendly working relationship with her and made no complaint. Bidfood launched an investigation and later added allegations that Ms Plows had breached confidentiality by discussing the investigation with colleagues and possibly with her son. During the process, Ms Plows was reminded repeatedly to maintain confidentiality. Bidfood then dismissed her for the cumulative impact of her conduct, including the original comment, the confidentiality breaches, and allegedly unsafe workplace behaviour. Ms Plows claimed unjustified dismissal and raised concerns about the fairness of the process.
The Authority found Ms Plows was unjustifiably dismissed. While her original comment was inappropriate and required management, dismissal was an unreasonable response, particularly given the recipient was not offended and had no complaint. The Authority was more concerned about serious procedural unfairness: the investigation and disciplinary processes were conflated rather than kept separate; allegations were added progressively without clear notice of the disciplinary implications; Ms Plows was not given a genuine opportunity to respond to the disciplinary concerns (as opposed to factual investigation matters); and she never met with the decision-maker directly to discuss the disciplinary outcome. The Authority awarded Ms Plows $17,531.25 gross for lost remuneration (three months’ wages, discounted 15% for her contribution), $17,000 compensation for hurt and humiliation (discounted 15%), and reserved costs.
Legal considerations for employers: Investigation and disciplinary processes must be kept separate, with employees given clear notice of disciplinary allegations and genuine opportunity to respond before a final decision is made. Adding new allegations progressively through a process undermines procedural fairness and may render a dismissal unjustified even if the original conduct was inappropriate. Senior HR managers are held to a high standard of professionalism, but dismissal must still be a proportionate response, and procedural integrity is essential to its justification. Employers should ensure the decision-maker meets directly with the employee to discuss the disciplinary implications of facts, not just the facts themselves.
2026-NZERA-779: Shelley Thornton v Mouldings Unlimited Limited – Interim Reinstatement Application Declined
Ms Shelley Thornton worked for Mouldings Unlimited as office support staff. Workplace friction developed between her and another employee. She refused to attend a mediation meeting and sent messages to the director saying “I think I’m done” and that she might resign. The director replied saying he treated this as a “heat of the moment” communication and invited her to confirm her intentions in writing by 11:00 am the next morning, or else a disciplinary meeting would proceed to discuss concerns including unauthorised deletion of company records and refusal to follow instructions. Ms Thornton confirmed her resignation effective immediately on 21 May 2026. She later applied for interim reinstatement, claiming the director’s ultimatum forced her to resign and constituted constructive dismissal. She provided an undated medical certificate stating she was medically unfit for work for August 2026 and claimed to be under active medical care.
This was a preliminary determination on the interim reinstatement application only. The Authority declined interim reinstatement. It found Ms Thornton’s constructive dismissal claim was only “weakly arguable”—the director’s correspondence did not amount to an ultimatum but rather was supportive and gave her a reasonable cooling-off period to clarify her intentions. The Authority also found serious practical and fairness issues with granting interim reinstatement: Ms Thornton herself stated she was medically unfit for work, making reinstatement pointless; she had resigned with immediate effect rather than accepting a notice period; there were unresolved conduct concerns including apparent unauthorised deletion of company records and concerning post-employment access to the payroll system to generate “zero” payslips; and the relationship between the parties was strained. The matter will proceed to case management in the normal way, with no urgency granted.
Legal considerations for employers: Giving an employee a brief cooling-off period to confirm whether a resignation expressed in emotional circumstances is genuine, with a formal disciplinary meeting to follow if they do not confirm resignation, is not necessarily an unlawful ultimatum. However, employers should keep investigation and disciplinary processes clearly separate and allow reasonable time for employees to respond. Post-employment conduct such as retaining access to company systems or generating unauthorised payslips may seriously undermine an employee’s credibility in later proceedings and should be documented carefully. An employee’s own statement that they are medically unfit for work will weigh heavily against an interim reinstatement application.
