This is not a weekly digest. We are not setting out to cover everything the Employment Relations Authority issued in the second half of August. A neutral, comprehensive recap has its place, of course, but this is not it. What we have here is narrower and more partial, five determinations from 17 to 30 August 2026 that caught our attention and made us look deeper into the mechanics behind said determinations. We found a few lessons we would like to share here. From the employer’s chair, most determinations pass without teaching you anything. A few are worth reading twice, though, and those almost always carry a teachable moment you can take into the next meeting.

Three of the five below are losses, and they lost the same way: the employer had substantive reasons for dismissing the employee, and the documentation to match — the kind that holds up — only to be undone by the process wrapped around it. Two are wins, and they held for similar reasons.

A note on the law before we start. Every one of these dismissals predates 21 February 2026, so each was decided under the long-standing test in s 103A(2) of the Employment Relations Act 2000 — whether the employer’s actions were what a fair and reasonable employer could have done in all the circumstances — and under the contribution rule in s 124 as it stood before this year’s amendments. Under recent Employment Relations Amendment Act updates, the Court will now also consider whether an employee actively obstructed these procedural steps. Future dismissals will also be judged through an altered lens to prevent dismissals from being found unjustified solely over minor procedural issues. However, these amendments are a subject for another day.

Turner v Big B Cartage Limited [2026] NZERA 581

David Turner, a truck driver for a small cartage firm, was called to a disciplinary meeting and dismissed for serious misconduct — workplace bullying — on the same day. The finding rested on a genuinely ugly text message he had sent a colleague. The meeting ran seven minutes. He was given no advance notice of the specific allegations, and the text the employer relied on was not put to him beforehand. The Authority found the dismissal unjustified, awarded $13,000 under s 123(1)(c)(i), then reduced it by 25 per cent for his contribution — the text was blameworthy — leaving $9,750.

Our read: The text was real, and on the page it is indefensible; the Authority said as much. The employer still lost, and the detail that stood out to us is the clock. Seven minutes. You cannot disclose allegations, hear a considered response, and genuinely weigh it in seven minutes — the number is not a technicality, it is evidence. Speed is what a closed mind looks like from the outside. A fair process is, in the Authority’s own phrase, prompt but unhurried, and where an employer arrives at the meeting with the decision already made, the haste shows. The lesson runs against instinct: the worse the conduct looks, the more disciplined the process has to be, not less. A bad text does not buy you a fast dismissal. It raises the stakes on getting the steps right.

Fahmy v Minimarc Childcare Centre Inc [2026] NZERA 585

Fatima Fahmy, a registered early-childhood teacher, was dismissed for poor performance after three performance-management plans running from August 2024 to July 2025. The employer, a small not-for-profit centre, did a great deal right: it documented its concerns, gave her time to improve, provided training, webinars, an external mentor, and one-on-one support, and took external HR advice throughout. The Authority still found the dismissal unjustified — and ordered reinstatement, lost wages, $25,000 under s 123(1)(c)(i), and the $71.56 filing fee, with no reduction for contribution.

Our read (the reasoning here rewards close attention): The centre manager, Ms Moss, ran all three plans and remained the primary assessor into the third. In most small workplaces that would be unremarkable — the manager assesses the staff member; who else would? What made it a problem was everything the employer already knew about the relationship. Ms Fahmy had made two formal bullying complaints against Ms Moss. And Ms Moss controlled the renewal of Ms Fahmy’s teaching certificate — she declined to certify her competence, without which Ms Fahmy could not keep the job at all. In that setting, the Authority held, the employer should have recognised that Ms Moss might not be able to bring an open mind to the assessment, and a fair and reasonable employer would have built safeguards into the plan to secure an objective evaluation. It did not. Ms Moss stayed in the chair.

The tempting label for this is “conflict of interest,” and we would resist it, because it points at the wrong thing. The Authority did not find Ms Moss corrupt or acting in bad faith. It found that the perception of objectivity had been destroyed by the surrounding facts, and that a careful employer, seeing those facts, would have protected the process from that risk before making a termination decision on the strength of it. The distinction matters in practice. Conflict of interest asks whether a person is compromised; objectivity asks whether the assessment can be trusted. An employer can concede the first is arguable and still lose on the second. So the operational lesson: where the assessor and the subject of a live complaint are the same person — or where the assessor holds some other power over the employee’s livelihood — a reasonable employer does not simply carry on. It brings in a second evaluator, independent input, or measurable targets checked by someone with no stake, and it does so before the decision, not after the grievance. Objectivity is not a state of mind you can assert. It is a structure you build.

Honotapu v Atlas Fibrous Plaster Company Limited [2026] NZERA 587

James Honotapu had been with the same plastering company, on and off, for around 25 years. In his final stretch his attendance was genuinely poor — 163 days off over 19 months, most for personal reasons, often without notice — and he had been warned about it, verbally and in writing. He was called to a meeting, declined a support person, and was dismissed in that meeting for his absences. The Authority found the dismissal unjustified and reduced remedies by 50 per cent for his contribution, bringing lost wages from $5,148 to $2,574 and compensation from $12,000 to $6,000 — $8,574 in total.

Our read: This is the one that should worry employers who think a well-warned employee is a safe dismissal. The attendance record was real and the warnings were real; the Authority did not pretend otherwise, and it laid half the responsibility at Mr Honotapu’s feet. He lost on a single, avoidable thing — he was never told, before the meeting, that his job was on the line. He turned down a support person because he did not know he needed one. Candidly, neither did the employer: the owner’s own evidence was that he walked in expecting a conversation, not a dismissal, and made the decision only once Mr Honotapu’s answers convinced him nothing would change. That is the trap. The obligation is not just to warn an employee about conduct over months; it is to tell them, on the day, what this particular meeting could cost them. And the Authority set out the fix in a sentence: even if dismissal was not on the agenda when the meeting began, once it entered the employer’s mind the meeting should have stopped and reconvened, giving the employee a chance to prepare and respond. Adjourning is free. Deciding in the room, in the heat of a disappointing conversation, is what cost this employer.

A stack of folders in slate, cream, and burnt orange with a burnished brass sphere resting on top, on a stone surface, a lit doorway and steps beyond in warm light.

Guo v Transportation Auckland Corporation Limited t/a NZ Bus [2026] NZERA 586

Congcong Guo, a bus driver assaulted by a passenger, brought a string of grievances against NZ Bus over how it handled his return to work and rehabilitation — forced assessments, suspended ACC payments, privacy, medical restrictions, and a claim of constructive dismissal. The Authority declined every one and found no breach of good faith under s 4. On the constructive dismissal claim the timing was decisive: Mr Guo resigned while a disciplinary process about his driving was still running, before it reached an outcome — and the preliminary view was a first written warning, not dismissal. NZ Bus separately agreed to reimburse $461.50 in medical invoices, which the Authority was careful to record as an ex gratia payment, not an admission of liability.

Our read: This is the counterweight to the three above, and it repays study for the same reason they do. NZ Bus won because its process held. When Mr Guo asked for a neutral assessment venue, it offered alternatives, a support person, and transport; when it moved to discipline him, it gave him the allegation, the evidence, a meeting, a preliminary view, and an invitation to respond before anything was decided. He resigned before that last step. An employee who steps out of a process before it concludes cannot easily convert his own exit into the employer’s dismissal — the resignation was not, in the Authority’s assessment, a reasonably foreseeable consequence of anything the employer did. The lesson is the encouraging inverse of the others: an employer that runs the steps, keeps offering a way to be heard, and does not pre-empt its own outcome is defensible even against a determined, multi-pronged claim. (This is the Authority-level contrast to South Pole IP Holding (NZ) Ltd v Hao, the Employment Court’s line on the resignation that is really a dismissal — there, a “resign or be dismissed” ultimatum was itself the dismissal; here, a resignation freely taken before the process concluded was not. We take up Hao in a companion piece — the point one tier up, where the line hardens into Court authority.)

Zhang v Health New Zealand Te Whatu Ora – Waitematā [2026] NZERA 559

Mikayla Zhang raised unjustified-disadvantage grievances arising from feeling excluded from work communications during periods of annual leave in late 2025 and early 2026. Health NZ argued the grievances were raised outside the 90-day statutory window. The Authority agreed and struck the disadvantage grievances out for want of jurisdiction. (A separate penalty claim survives to be investigated; the strike-out is of the disadvantage grievances, not the whole matter.)

Our read: The determination turns on a point employers routinely misunderstand about the 90-day clock — when it starts, and what it takes to start it. Ms Zhang pointed to an email exchange in early November 2025 as the moment she raised her grievance. Reading those emails, the Authority found something different: operational queries about invoices and being kept in the loop, which management answered, and with which she appeared satisfied at the time. Nowhere in them did she convey that she believed she had been treated unfairly and wanted the employer to put it right. That distinction is the whole case. A grievance cannot be intuited from an employee’s unhappiness; the law requires the employee to raise it in a way the employer can recognise as a complaint of that kind, so it knows what it is being asked to fix. Because the November emails did not do that, the clock never validly started on those matters, and by the time the grievance was properly articulated it was out of time. For employers the reading is double-edged and useful: you are not obliged to treat every terse email as a grievance in disguise, but you cannot lean on that when it suits you either — the safer discipline is to notice when an employee is signalling a genuine complaint, name it, and deal with it, rather than answering the operational question and moving on.

The through-line

Put these five side by side and the pattern is hard to miss. The Authority is not second-guessing whether the employer had grounds in any of them. Turner’s colleague really was abused in that text; Fahmy’s performance really was in question; Honotapu really was absent; and where the employer kept its process intact — NZ Bus, and Health NZ on the notification point — it won. What separates the losses from the wins is not the strength of the reason. It is whether the process around the reason could bear weight when someone finally leaned on it.

That is the whole of the employer-side discipline, and it is unglamorous: a real reason is necessary but is not enough. The process must be beyond reproach. Most of the employers who lost this fortnight would have won with another week, a clearer letter, a second assessor, or a meeting that stopped when it should have. The gap between a justified outcome and an unjustified dismissal is usually that small — which is exactly why it is worth closing before you need to.

If you are running a disciplinary, a performance process, or a restructure and you want the process to hold when it is leaned on, that is the work we do.

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Sources

All five read in full from the primary determinations (NZLII); determination dates 17 and 24 August 2026.

This is general commentary on published determinations, not legal advice; for a specific situation, talk to us or to your own adviser.