It’s a human truth that most employers are relieved when a difficult employee appears to quit. There is no awkward meeting, no process, and no letter to draft — they said they were leaving, and that is that. It feels like the problem solved itself.
OAS v JIK Limited deals with a situation where an employer reaches for that relief too quickly.
The employee, known in the determination only as OAS, worked as a chef for an Auckland hospitality business from July 2023. The business ran lean, rosters went out over a group chat, and by early 2024 the owner had had enough of OAS’s attendance. He had taken time off when his dog died — his request for leave had been refused, and he had gone ahead and taken it anyway — and there was a wider history of missed shifts that left the rest of a thin kitchen carrying the load. Tellingly, the employer had never actually done anything about any of this: no warning, no disciplinary process, nothing on the file. But the frustration was real, and it was sitting there, waiting for somewhere to go.
Then, in February 2024, OAS’s life came apart. There was a confrontation involving his current and former partner, which OAS described as an assault, and the police were called. Frightened for his children, he collected them from their mother’s house, moved them to safer accommodation, and was assigned a victim support worker. On the Monday, he did not turn up to work. When his manager asked where he was, he explained — in the middle of all of it — that he had to get his children out, that their mother was unstable, that he had urgent calls to make about custody and safety, and that he might have to resign if he could not get the time off.
That last line is the one the employer heard. Not the family violence. Not the children. The word “resign”.
Over the next few days, OAS filled in the rest. He needed time to keep his children safe and to obtain a protection order. He offered to put the employer in touch with his victim support worker. And he said, plainly, that he had not abandoned his job and would be back the following week if he was rostered. The owner’s response was to keep circling one question — had he resigned, or hadn’t he? — and then to put it bluntly: turn up tomorrow, or the resignation is accepted. OAS said he could not make it that day, because he had to see his victim support adviser and file court documents, but that he would be there the next week. When the new roster went out, his name was not on it. That, he later said, was the moment he understood he was not wanted back.
Here is where many employers would expect the story to break their way. He said he might resign. He missed the shift he was told to attend. Surely that is a resignation, or at least an abandonment?
The Authority did not see it that way, and the reasoning is worth sitting with.
First, messages sent in the middle of a crisis have to be read as a whole and in context — not mined for the one word that happens to suit you. Read properly, OAS had not resigned. He had said the opposite: that he had not abandoned his job, and that he wanted to come back.
Second, because he had not resigned, someone had to have ended the employment — and someone did. Leaving him off the roster while he stood ready to work was the employer bringing the relationship to a close. There was no letter, no meeting, no formal “you are dismissed”. It did not matter. When the employer is the one who pulls the plug, that is a dismissal, however it is dressed up.
Third, the dismissal was unjustified because a fair and reasonable employer — told that an employee needed time away to deal with a family violence situation and to protect his children — would have stopped and asked questions. It would have considered the family violence leave sitting in its own employment agreement and in the Holidays Act 2003. It would have taken up the offer of supporting information. This employer did none of that. It ran a family violence situation through an attendance-management lens and dismissed a man for being away when the law entitled him to be away.
The employer’s frustration was not imaginary, and the Authority did not pretend otherwise. OAS’s earlier absence, the week his dog died, was genuine blameworthy conduct, and it cost him: his remedies were cut by ten per cent for his own contribution. But the Authority was pointed about the proportions. His contribution was minor set against the employer’s failure to honour a statutory and contractual entitlement. Ten per cent off his award; an unjustified dismissal and a breach of the duty of good faith on the employer’s side. The business was ordered to pay $13,500 in compensation and $7,920 in lost wages, and left carrying a finding that it had not dealt with its own employee in good faith.
Strip the facts back, and this is not really a case about family violence leave — although it is a sharp reminder that the entitlement is real, and that it overrides your ordinary instincts about absenteeism. It is a case about the difference between a conclusion and a shortcut. “He abandoned his job” and “he resigned” are conclusions. They are things you are allowed to decide — but only after you have done the work of finding out whether they are true. This employer skipped the finding-out and went straight to the conclusion it wanted, because the conclusion it wanted made the frustration go away.
That is the move the law will not let you make. Abandonment is not an exit you can take to sidestep a process. It is a factual finding you have to earn — and you earn it by asking questions, not by seizing on the most convenient sentence in a distressed employee’s message.
