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Cases of Interest: October 2025

A summary of interesting or topical employment cases.

Jenner v Corrections Assoc of New Zealand Inc [2025] NZEmpC 241

Employment Court – Judicial review – Decision to remove union official from role

At issue was:

  • An application for judicial review of the proposed action of the union to remove the employee from their role.
  • Whether a compliance order should be granted to enforce the interim injunction granted by the Employment Court (the Court) prohibiting the union from conducting a process for removal against the employee.

The employee previously filed proceedings in the court for judicial review of the union’s proposal to take disciplinary action against the employee. Subsequently, the employee was elected as the vice president of the union. The union gave the employee notice that they intended to begin the process of removing them from their position due to complaints made against the employee regarding their behaviour in the 18-month period prior to their election and in their capacity as vice-president of the union. These complaints and allegations included, among other things, that:

  • It was inappropriate for the employee to stand for their role while having open court proceedings against the union.
  • They misled union members because they did not disclose these proceedings.
  • There was a conflict of interest which prevented them from acting impartially or in line with the union’s values or goals due to these proceedings.

The union received further complaints regarding the employee’s behaviour in meetings, and about him using public forums inappropriately, and in contacting the Department of Corrections directly, actions which were alleged to have undermined the union.

In August 2025, the Court granted an interim injunction preventing the union from conducting the process of removal against the employee (see Jenner v Corrections Assoc of New Zealand [2025] NZEmpC 168(external link)). The Court acknowledged that it was frustrating for the union, however it was found that the injunction was necessary to preserve the employee’s position as there was a reasonable chance that the employee would succeed in their application for judicial review (see paragraphs 100, 101 of the interim injunction decision).

The employee submitted that:

  • Undertaking the process of removing him from the union would breach the Union’s duty of good faith by:
    • failing to establish just cause and failing to act in line with the principles of natural justice, in breach of its own rules
    • acting inconsistently with the implied mutual obligations of trust and confidence
    • failing to be active and constructive in maintaining a productive relationship.
  • Undertaking this process would be contrary to the union’s statutory obligations to have rules which are democratic amongst other things.
  • The grounds relied on by the union as basis for the employee’s removal did not amount to just cause.

The union submitted that:

  • As a preliminary matter, the Court did not have jurisdiction to intervene before a decision was made; to intervene at this stage would risk taking over the Union’s power.
  • The collective agreement provided the employee a right of appeal to the entire membership. The Court should not intervene where the employee has an opportunity for an appeal which would render judicial review superfluous.
  • The type of conduct which could fall into the category of just cause was broad and dependent on the circumstances. All that was required for this the test of just cause to be met was that the cause for removal was just, having consideration to all of the circumstances.
  • The complaints and allegations against the employee over the 18-month period amounted to just cause for removal.

The Court found in favour of the employee. The Court made the following declarations:

  • The union was wrong in law to propose the removal of the employee on the grounds of just cause where this included reference to the employee’s proceedings against the union (see paragraph 223).
  • The union was wrong in law when it asserted that just cause amounts to a cause that is just in the circumstances (see paragraph 223).
  • The union failed to provide sufficient notice of the nature of the concerns allegedly amounting to just cause, in breach of the principles of natural justice (see paragraph 223).
  • The union proposed including decision-makers who were not impartial and unable to consider the concerns raised without a predetermined view, in breach of the principles of natural justice (see paragraph 223).
  • The union is required to follow the principles of natural justice in making any decision under the constitution regarding the removal of the employee (see paragraph 223).
  • In passing the resolution which prohibited the employee from undertaking their duties as vice president, the union had unlawfully breached the Court’s order and must cease (see paragraph 224).

Jenner v Corrections Assoc of New Zealand Inc [2025] NZEmpC 241(external link)

McGearty v Air New Zealand Ltd [2025] NZEmpC 223

Employment Court – Personal grievance – Discrimination based on age

This case involved a challenge to a determination of the Employment Relations Authority (the Authority). At issue was:

  • whether the employee was unjustifiably disadvantaged by the actions of the employer
  • whether the employer unlawfully discriminated against the employee based on their age.

The employee was employed by the employer as a C7 pilot (the highest-ranking level of captain) onboard the employer’s wide-body fleet. The applicant turned 65 years old in 2017. International law restricted options for international commercial flying for pilots 65 years and older. Domestic legislation and the terms of the collective employment agreement allowed pilots turning 65 to choose the option of transferring to a narrow-body fleet, which also resulted in a reduction of pay. The employee did not wish to transfer to and believed that they could continue work as a pilot in the wide-body fleet, believing they were unaffected by legislation requiring them to transfer.

A committee, made up of representatives of the employer and the two unions representing pilots, undertook high-level modelling to determine whether it was possible to accommodate pilots who had turned 65 as C7s on the wide-body fleet. As the committee determined that it was possible, a consultation process was set up with the aim of establishing a trial. The trial was then suspended. The employer wrote to the employee advising them that they would be rostered for the next narrow-body fleet course. The employee was then offered a place in the trial once the trial resumed. The trial was suspended again due to the impacts of COVID-19. When the trial restarted two years later, the employee was unable to be accommodated as a captain in the wide-body fleet due to a lack of seniority. The employee was then offered a role in the narrow-body fleet which they declined.

The Authority found in favour of the employer, determining that the employee did not have personal grievances under section 103 of the Employment Relations Act 2000(external link) (the Act), and that the actions of the employer were what a fair and reasonable employer would have done (see McGearty v Air New Zealand Ltd [2024] NZERA 55(external link)).

The employee submitted that:

  • The employer had sufficient capacity to accommodate the employee as a C7 “Age Restricted Pilot” (ARP) in the B777 fleet upon turning 65, and that the failure to provide such work amounted to unlawful discrimination.
  • The employer did not owe competing duties to pilot unions, and in the instance that such duties were owed, they could not prevail over the legal duties that were owed to the employee personally.
  • The employer failed to comply with the terms of the collective agreement and that the breach of this agreement amounted to an unjustified action which disadvantaged the employee.

The employer submitted that:

  • International Civil Aviation Organisation standards governing ARPs constituted a genuine occupational qualification which entitles the employer to treat employees differently on the basis of their age.
  • They had implemented reasonable accommodations which had been operating for more than a decade prior to the employee’s claim. This reasonable accommodation framework satisfied their legal obligations not to unlawfully discriminate on the basis of age.
  • The employee’s requests were not feasible and would have created significant business disruption in their implementation.
  • They had complied with all their obligations under the collective agreement.
  • They had complied with all their statutory obligations under the Human Rights Act 2003(external link) and the Act to not unlawfully discriminate against the employee.

The challenge to the Authority’s determination was successful. The Employment Court found that:

  • The employee was disadvantaged by the unjustified actions of the employer (see paragraph 201).
  • The employer unlawfully discriminated against the employee on the basis of their age. The employer could have made reasonable accommodations to ensure that the employee could remain employed as a C7 on the wide-body fleet without causing unreasonable disruption to their business activities (see paragraph 201).
  • The employee did not fail to mitigate their losses. The employee’s refusal of a new position on the narrow-body fleet was not unreasonable in their circumstances (see paragraph 201).
  • The employee was not estopped from submitting claims of unjustifiable disadvantage or unlawful discrimination (see paragraph 201).

McGearty v Air New Zealand Ltd [2025] NZEmpC 223(external link)

Smart Sushi Northwest Ltd v Labour Inspector of the Ministry of Business Innovation and Employment [2025] NZEmpC 236

Employment Court – Challenge – Question of law – Lawfulness of offsetting lump sum payments to employees against Holidays Act 2003 arrears

This cased involved a challenge to a determination of the Employment Relations Authority (the Authority). At issue was whether the Authority had erred in fact or in law in:

  • determining that the employers were not permitted to set-off the lump-sum payments previously made to employees when making remediation payments for reinstated holidays.
  • determining that the employers were not entitled to set-off the alternative holiday payments previously made to employees when making remediation payments for alternative holidays.
  • failing to properly determine the nature and extent of the loss suffered by employees as a result of the employers’ breaches.

The employer had a long-standing business practice of paying their employees a lump sum each December of eight per cent of their wages instead of providing them with paid annual leave entitlements. The Ministry of Business, Innovation and Employment received a complaint from a former employee of the employer regarding these December payments. The Labour Inspector issued an Investigation Report and concluded that the practice of making these December payments did not comply with the Holidays Act 2003(external link) (the Act). The employer stopped these December payments, agreeing that they were unlawful, however the parties disagree on whether the employer was entitled to credit for these payments for the purpose of assessing remedies for prior breaches.

The employer submitted that:

  • The proper approach to remedying their breaches of the Act is to put the employees impacted by the breaches in the position they would have been in had the employer properly complied with the Act.
  • The Authority should have considered the nature and extent of loss suffered by the employees, and the employer should pay the difference between the amount already paid and the amount owing.

The Labour Inspector submitted that:

  • An employee’s right to be paid for annual holidays and alternative holidays is a minimum entitlement, the timing and method of payment for these holidays is prescribed by the Act. The employer therefore cannot discharge these obligations and minimum entitlements under the Act, even if the previous payments were made in good faith.
  • The employees had never been provided with their relevant minimum entitlements. The financial disadvantage to the employer is unfortunate, however there is no mechanism by which the employer is allowed to set-off or deduct previously made payments.

The employer’s challenge was unsuccessful and was dismissed. The Employment Court (the Court) found that:

  • The employers were not permitted to set-off the lump-sum payments made to employees when making remediation payments for reinstated holidays (see paragraph 49).
  • The employers were not entitled to set-off the alternative holiday payments previously made to employees when making remediation payments for alternative holidays (see paragraphs 58, 60).
  • When assessing the nature and extent of loss suffered by the employees, the Court cannot take into account the incorrect payments already made by the employer. The employees’ minimum entitlements remain in force as if the incorrect payments had not been made, and the loss of the employees is absolute and can only be restored in full once entitlements were paid in line with the employers’ obligations under the Act (see paragraphs 68, 69).

Smart Sushi Northwest Ltd v Labour Inspector of the Ministry of Business Innovation and Employment [2025] NZEmpC 236(external link)

Tertiary Education Union v Te Pukenga NZ Institute of Skills and Technology t/a Unitec [2025] NZEmpC 242

Employment Court -- Contractual interpretation – Collective employment agreement – Dispute

Employment Court -- Collective employment agreement – Variation of terms – Consultation requirements

This cased involved a challenge to a determination of the Employment Relations Authority (the Authority). At issue was:

  • Whether insurance policies for the employees were a contractual entitlement under their employment agreements.
  • If the insurance policies were a contractual entitlement, whether the employer’s removal of these policies amount to a breach of the employment agreement or a breach of the Education and Training Act 2020 (the ET Act)(external link).
  • If the insurance policies were not a contractual entitlement, whether the employer’s removal of them, and the way they were removed, were:
    • A breach of the employer’s contractual obligations to be fair and reasonable
    • A breach of their good employer statutory obligations under section 597 of the ET Act(external link).
  • Whether the employer failed to comply with their consultation obligations under the Employment Relations Act 2000 (the Act)(external link) prior to removing the insurance policies for the employees.

The employees in this case were a group of longstanding employees who had been employed with the employer for periods of between 20 to 29 years. While employed, the employees received several benefits, including entitlements to insurance policies. The collective agreement did not refer to the provision of insurance policies. The employees received an annual letter confirming the renewal of their insurance policies. From 2018 onwards an additional clause was added to the insurance information sheet stating that the insurance plan was provided as a valuable benefit, and that the employer had the right to amend or terminate the insurance benefit at their discretion.

The employees’ previous place of employment was dissolved into the employer by operation of the ET Act. The employer sent an email to employees proposing that that insurance policies be withdrawn due to difficulties in maintaining the benefits in their current form. Staff were initially given three weeks to consider this proposal and respond; this consultation period was then extended for an additional week. The employer did not answer questions regarding the complexities of the policy ownership, however it advised the employees that the removal of the insurance benefits would make a significant cost saving to mitigate the need for cost savings that would be necessary in other areas. Alternative solutions were proposed by unions and employees, however the Employment Court (the Court) did not find evidence the employer considered the alternative solutions. The employer then advised staff that the insurance policies would be withdrawn to ensure financial viability and to avoid having to make cost savings in other areas.

The Authority found that the insurance policies were not an express or implied term of employment. It also found that the consultation process undertaken by the employer was full, fair, and reasonable, and that it was lawful for the employer to remove these policies.

The Union and the employees submitted that

  • Even if the insurance policies were not a contractual term of employment, they were still captured by the phrase terms and conditions in clause 14 of the collective agreement.
  • The employees were to be provided equivalent employment, the terms and conditions of which were to be no less favourable than their previous employment. The steps taken to remove such a valued benefit within a short period after the transfer of their employment is inconsistent with this purpose.
  • The letter provided to the employees stated that all employment related process and benefits would continue, and that and that the employer committed to continuing these benefits, regardless of their contractual status.

The employer submitted that they had complied with all their commitments. They submitted that just as the benefits continued, so did the employer’s the right to terminate the benefit at their discretion. They agree that the benefits may only be terminated following the correct process, which they followed.

The challenge to the Authority’s determination was successful. The Court found that:

  • The insurance policies were not a contractual entitlement under their employment agreements, nor did their removal engage the good employment obligations under section 597(2) of the ET Act(external link). However, the employer was still required to undertake a process consistent with their good faith obligations under section 4 of the Act (external link)(see paragraph 99).
  • The employer failed to comply with its consultation obligations prior to the removal of the insurance benefits (see paragraph 123).
  • The employer had determined the outcome prior to entering into consultation in breach of section 4(1A) of the Act(external link) (see paragraph 124).
  • The consultation material was misleading and in breach of the good faith obligations under section 4(1)(b) of the Act(external link) (see paragraph 125).

Tertiary Education Union v Te Pukenga NZ Institute of Skills and Technology t/a Unitec [2025] NZEmpC 242(external link)

AXE v QVM [2025] NZERA 689

Employment Relations Authority – Personal grievance – Unjustified constructive dismissal

Employment Relations Authority – Breach of Employment Relations Act, section 67D – Failure to provide compensation for employees making themselves available for on-call work

At issue was:

  • Whether the employee was constructively dismissed and if they were, whether the dismissal was justified.
  • Whether the employer operated an availability provision inconsistent with section 67D of the Employment Relations Act 2000(external link) (the Act) by having an ‘on-call roster’ without compensating employees for making themselves available.

The employee commenced employment with the employer with the expectation that they would work only 40 hours per week so that they would be free to pursue interests outside of work. The employment agreement provided stated that the employee’s normal hours of work would be for 40 hours per week. The employment agreement stipulated their normal working hours and, had no provisions regarding working outside of their hours or relating to being on-call. Despite the employment agreement, the employer expected that employees would work 50 hours per week. The employee made multiple efforts to alter their working hours to work 40 hours per week. The employer also operated a roster to make employees available if another employee was not available. However, the employer made no payments to employees for mere availability on this roster; such standby payments were only made when the employee was called outside of normal work hours.

The employee attempted to meet with the director to discuss their concerns, including unpaid sick leave payments. An altercation occurred between the director and the employee, resulting in the employee taking time off from work. The employee then submitted a letter of resignation, giving two weeks’ notice. The employee provided a medical certificate demonstrating that they would be unable to work for the remaining two weeks. The employer did not accept this medical certificate and notified the employee that they had been dismissed without notice.

The employee submitted:

  • They resigned in response to breaches of duty by the employer and that the resignation amounted to a constructive dismissal.
  • The employer’s actions and omissions caused them to be unjustifiably disadvantaged during the period of their employment, including:
    • Their failure to provide paid sick leave entitlements
    • The creation of a hostile work environment and failure to constructively resolve identified concerns
    • Their failure to pay appropriate compensation for time spent while on-call.

The employer submitted that:

  • The employee’s resignation was voluntary and for the purpose of pursuing personal business interests.
  • No breaches of duties occurred that could amount to an unjustified disadvantage.
  • The on-call roster was voluntary and did not involve any compulsion.

The Employment Relations Authority (the Authority) found that the employer’s actions and omissions were unjustified and overall resulted in:

  • The employee suffering a disadvantage in their employment relationship (see paragraph 105)
  • The employee resigning in circumstances where it was foreseeable to the employer that the employee would resign because of their actions and omissions. As a result, the Member concluded that the employee was dismissed, and that this dismissal was unjustified (see paragraph 105).

The Authority also found that:

  • Alternatively, the employee was dismissed during their notice period, which was also an unjustified dismissal in the circumstances (see paragraph 105).
  • In categorising the payments for those rostered on call as ‘standby payments’, the employer committed themselves to paying the employees for their availably on the roster (see paragraph 109).

The Authority ordered the employer to pay:

AXE v QVM [2025] NZERA 689(external link)

Singh v IK Hospitality Ltd [2025] NZERA 680

Employment Relations Authority – Migrant employee – Minimum employment standards breaches – Failure to pay minimum wage – Failure to pay holiday pay – Seeking and receiving a premium –  Arrears – Penalty

Employment Relations Authority – Personal grievance – Unjustified constructive dismissal

At issue was:

The employer was the holder of an Accredited Employer Work Visa (AEWV). The employment for which the visa was granted was terminated. The employee turned towards a contact (the respondent) for advice, who offered the employee work at his bar for the price of transferring the AEWV to the employer. The respondent offered the employee assistance with their rent as they could pay the employee wages and told the employee to go to the bar to begin training. The employee accepted this offer.

The employee continued to undertake duties at the bar while working towards a licensed control qualification (LCQ), a qualification necessary to work as a duty manager in a bar. The employee did not receive any further assistance for their rent payments or any payments for the work they undertook. His requests for payments were dismissed. The employee then informed the employer that he could not work if he was not being paid.

The employee submitted evidence in support of a finding that they were an employee. This included messages the respondent sent to the employee which the employee submitted were work instructions, as well as videos of the employee performing various tasks in the bar.

The employer submitted that they did offer employment to the employee, nor did they employ the employee. The employer submitted that:

  • The employee was unable to work for the employer under the terms of their visa
  • They provided help to the employee to get a LCQ but never gave instructions to the employee as to when to start work
  • The employee came and went to the bar as he pleased and that the messages to the employee were to be passed on to bar staff.

The Employment Relations Authority (the Authority) found that:

  • There was an employment relationship between the employee and the employer. The Authority considered:
    • The nature of the work performed by the employee in the bar, including the training received by the employee on duties integral to the employer’s business (see paragraph 31)
    • Even if it was accepted that that the employee’s involvement was in a training capacity, where a reward is expected or received, this is more likely to give rise to an employment relationship. The evidence before the Authority was that the employee expected and received rewards regarding their immigration status, rent payments, and assistance with the LCQ process (see paragraph 32).
  • The employee was unjustifiably disadvantaged in both the employer’s failure to pay their wages and in requiring the employee to pay a premium in exchange for employment (see paragraph 38).
  • The employee was unjustifiably constructively dismissed. The failure of the employer to pay wages to the employee made it reasonably foreseeable that the employee would resign (see paragraph 40).

The Authority ordered the employer to pay:

Singh v IK Hospitality Ltd [2025] NZERA 680(external link)