An HR manager who never had the chance to put her case directly to the man who dismissed her has been awarded $34,531.25 by the Employment Relations Authority. Her employer argued that its general manager could properly decide the matter on the investigation report, and that its letter of 29 May kept the investigation findings apart from the disciplinary proposal. The Authority accepted that either point might have been fine on its own. Taken together, they left her with no real chance to argue about the outcome before the decision-maker had already settled on dismissal.
The determination, Plows v Bidfood Limited, was issued by Authority Member Claire English on 20 October 2026.
What happened
The employee had worked for the employer since November 2016, and by 2025 she was its Human Resources Manager and its Health and Safety Manager.
In May 2025, during an ongoing exchange about coffee with a manager from another branch, she called him a “typical Asian” (or perhaps “typical bloody Asian”; both versions were alleged). The two of them got on well and traded banter as a matter of course, and he never complained. Two colleagues who overheard the remark did, though.
On 20 May 2025, the employer invited her by letter to an investigation meeting. The letter said a final written warning was a possible outcome. She was asked not to contact the complainants or the other manager, and to keep the matter confidential.
She was shaken by the letter. When two colleagues asked whether she was all right, she told one that she had received a disciplinary-type letter, and told the other that she was facing a formal investigation about something she had said to the other manager.
An updated letter followed. It added allegations that she had breached the confidentiality of the investigation by talking to those colleagues, and to her son, who also worked there. She denied speaking to him, but accepted that he appeared to have overheard her discussing it with her partner at home. Another allegation, about a separate remark in the workplace, was raised and later dropped by the employer as vague and disputed.
She then attended a meeting with an HR business partner and another manager. Afterwards, with the HR business partner working in the same office, she telephoned the other manager about the matter. She said she had been told to check in on him. The HR business partner said she had talked about checking in with people, including the other manager, but as a prompt to reflect on how her words landed with others, not an instruction to discuss the matter with him. That call became a further allegation of breaching confidentiality, and the parties never agreed on what had been said or meant.
On 29 May 2025 the employer wrote setting out its findings and a proposal to dismiss her on notice. She was offered the chance to respond in writing or by audio-visual link, and chose to respond in writing. On 5 June 2025 she was dismissed, with notice paid in lieu. The dismissal letter said trust and confidence had been destroyed, and relied on “the cumulative impact of your actions”.
At no point in the process did she speak to the general manager who made the decision.
The investigation was not the problem
The Authority found the allegations were sufficiently investigated. They were clear enough to respond to, and she accepted most of the underlying facts, including that she made the remark. Because the facts were largely agreed, the absence of formal witness statements did not count for much.
The Authority also accepted that the employer was entitled to set standards of behaviour, and considered that she did not appear to have taken seriously enough the effect of her words on others, or the importance of keeping the process confidential.
“It is the combination of these two matters”
The employer’s process ran in a straight line. There was one meeting, some emails, a letter of findings that also proposed dismissal, a written response, and then the dismissal.
The Authority said that compressing the investigation and the disciplinary stages might not matter on its own, especially where the key letter set out the findings at length. Nor is it inherently wrong for a decision-maker to decide on an investigation report. The trouble was having both at once.
An investigation searches for facts. A disciplinary process asks what these facts mean, and what should follow. The two sides here took very different views of how serious her conduct was. Yet she was never given a chance to respond to the findings, or to say whether disciplinary action should follow at all, before the decision-maker had already formed the view that dismissal was appropriate.
The allegations kept growing
She faced three different sets of allegations, raised at different times in different documents. Some were said to carry a possible written warning, some a possible dismissal, and some were not pursued in the end. Then the dismissal letter relied on “the cumulative impact of your actions”.
The Authority described an inherent unfairness in continuing to add allegations and then appearing to change the range of possible outcomes at the end of the process.
“This confusion of roles is significant”
The employer said its general manager decided on the investigation report alone. His own evidence suggested otherwise. He kept discussing both his preliminary and final decisions with the two people who ran the investigation, and took their feedback into account. None of that was disclosed to the employee at the time.
The Authority found that the employer had taken care to do neither of two things. It had not kept the decision-maker to a stand-alone report, and it had not given the employee a proper chance to speak to him directly about the disciplinary question.
The Authority found these failures were more than minor, and that they cost her a genuine opportunity to persuade the decision-maker about the right outcome. The dismissal was unjustified.
Outcome
- Compensation for hurt and humiliation: assessed at $20,000, against the $20,000 to $25,000 she sought. The Authority found no truly aggravating features, noted that the employer had tried to keep the process professional and timely, and that it was the employee who had made the matter more widely known.
- Lost wages: three months’ ordinary pay, $20,625 gross, under s 128(2) of the Employment Relations Act 2000. The employer argued for nothing, because she had not looked for work until after a pre-booked holiday in October 2025 and her documents only showed job applications from February 2026. The Authority held that s 128(2) required the three-month award anyway. It declined to award anything beyond three months, given the thin evidence of her job search.
- Contribution: the employer sought a 50 per cent reduction. The Authority applied 15 per cent, for her repeated failure to keep the process confidential after being reminded in writing and in person.
- Orders: $17,531.25 gross in lost wages and $17,000 compensation, a total of $34,531.25. Costs were reserved.
Our view
The Authority did not decide whether dismissal was a justified response to what she did. It accepted that an employer can set standards for how people speak at work, and considered she appeared to have given too little thought to how her words landed with those who overheard them. But the remark itself was put to her with a final written warning as the possible outcome. In our view, what appears to have turned it into a dismissal was the confidentiality allegations that gathered around it afterwards. The case itself was lost on the shape of the process.
Keep the two questions apart. Establish the facts first, and put the findings to the employee. Then, separately, ask what should follow, and let the employee speak to that before anyone forms a view on dismissal. A letter with good headings does not do this work on its own.
Settle the allegations and the possible outcomes early, and hold to them. Where new concerns surface mid-process, in our view the safer course is to put them in a fresh letter that says plainly what is now being considered and what it could lead to. Folding them in as you go invites the “cumulative impact” problem this employer ran into.
The confidentiality allegations deserve a closer look. They all arose from how she behaved once the process had begun. She told colleagues who asked whether she was all right about the letter, and asked a colleague to be her support person, who then reported it to the employer. Her son appears to have overheard her talking to her partner at home. She phoned the other manager with the HR business partner in the room, and the employer then raised the call as a further breach. The dismissal letter treated disclosing any aspect of the process as a serious lapse in judgement.
The Authority held these breaches partly against her, reducing her remedies by 15 per cent, and the first letter had asked her not to contact the other manager at all. Even so, in our view a confidentiality instruction is there to protect the integrity of an investigation. It should not be read so widely that it stops an employee seeking support, answering an honest question from a colleague, or talking to their partner at home. An employer that applies the instruction that broadly risks building the grounds for dismissal out of its own process.
Decide who decides, and be honest about what that person relies on. If the decision-maker is to work from the report, keep them to the report. If others are shaping the decision, the employee should know, or should have a chance to put their case to the decision-maker directly. In our view, the same reasoning reaches any input the decision-maker leans on that the employee never sees, whether it is a colleague’s view, an adviser’s note, or a summary produced by an AI tool. An employee cannot answer what they cannot see.
There is one more point employers should notice. This dismissal took place in June 2025, before the Employment Relations Amendment Act 2026 came into force on 21 February 2026, and the determination applies the law as it stood then, without reference to the amendments. Two changes bear on it.
The first is the test for procedural defects. Section 103A(5) now says a dismissal must not be found unjustifiable solely because of process defects that did not result in the employee being treated unfairly. We doubt that would have saved this employer, because the Authority found the defects cost the employee a genuine opportunity to persuade the decision-maker.
The second is remedies. Under the new s 123C, once the Authority finds that the employee’s actions contributed to the situation, it must not award reinstatement or compensation under s 123(1)(c), which includes compensation for hurt and humiliation. Lost wages can still be awarded, and s 124 now allows them to be reduced by up to 100 per cent. On the wording of s 123C, the same 15 per cent contribution finding on a dismissal today would remove the $17,000 altogether. How the Authority will apply s 123C, including how much blame it takes to trigger it, is still being worked out, so we would not treat that as settled. But the direction is clear enough. The process failure would likely still sink the employer, and the bill would look very different.
- Plows v Bidfood Limited [2026] NZERA 778, 20 October 2026 — determinations.era.govt.nz. No Employment Court challenge found as at 2 November 2026.
- Employment Relations Amendment Act 2026, ss 7, 8, and 19; Schedule, new Part 9 of Schedule 1AA
Lex Praxis advises New Zealand employers on employment law and AI governance. This article is general commentary and does not constitute legal advice. For advice specific to your circumstances, contact us directly.