Kiwibank Justified in Dismissing Contact Centre Employee After Checking Call Recordings

The Employment Relations Authority has found that Kiwibank was justified in dismissing a contact centre employee for serious misconduct after its workforce management team flagged unusual call-handling patterns. The employee argued that the bank had treated odd-looking metrics as proof, and that the real issues were health, training, and technology. That argument failed. The bank had not stopped at the metrics. It listened to the calls, gave the employee links to every recording it relied on, paid them a day to review the material, and paused the process for months while it asked for fuller information about the employee’s prognosis.

The employee is anonymised as ACB. Permanent non-publication orders cover ACB’s name and identifying details, and ACB’s medical and financial information (ACB v Kiwibank at [8]), so we have kept to the general shape of the health issues.

What happened

ACB started at Kiwibank’s Hastings contact centre on 16 June 2025 as a Customer Experience Representative. The core of the job was taking customer calls. Calls were routed through a system called Genesys, and staff set their own status in it: on queue, off queue, on break, or in after-call work, the short period after a call for notes and follow-up ([21]–[23]). The Workforce Management team monitored those statuses in real time.

ACB had health difficulties from early in the employment. Kiwibank agreed to a five-minute break every hour, provided ACB told the manager when they would be away for longer than five minutes, and later agreed to full-time working from home ([32]–[34]). At a meeting in August, on the bank’s account, ACB said they could do the job safely and needed no further support ([35]). ACB disputed parts of the notes of that meeting.

On 22 August 2025, a regular review by Workforce Management raised concerns about possible call avoidance, long hold times, disconnected or unanswered callbacks, and after-call work out of proportion to short calls ([38]). The manager raised them informally four days later. ACB said one customer had been on hold while ACB tested a headset, and that a disconnected callback was a technical fault ([40]).

The manager tested those answers against the records. One customer had been greeted and then left on hold for about 20 minutes with no attempt to re-engage, followed by seven minutes of after-call work. That did not fit a headset test. There were no comparable technical faults that day, and the system showed that ACB had ended the call ([42]).

Workforce Management then sent links to 12 more calls. The manager compiled 15 calls of concern from 4 to 25 August, then reviewed further calls himself and found another 17 between 25 August and 3 September. He concluded that this was a conduct issue, not a performance one ([43]–[45]).

On 7 September 2025, ACB was invited to a disciplinary meeting on allegations of serious misconduct: misuse of call statuses and the hold function, and breaks beyond those agreed ([46]). ACB was told dismissal was possible and was sent links to the calls. Over the following weeks Kiwibank allowed two business days to arrange representation, a paid day to review the material, and several new meeting dates ([48]–[57]). ACB went on sick leave and replied in writing on 22 September, putting the calls down to technical issues, health, mistakes, and a misunderstanding about break notification ([61]).

Kiwibank paused the process. It asked for consent to obtain medical information on diagnosis, prognosis, and workplace adjustments, and paused again in November ([69]–[72]). Medical material ACB then supplied led the bank to question what ACB had said about their health when applying for the job. On 12 December 2025, Kiwibank added a second allegation: that ACB had given inaccurate information in the pre-employment health declaration and at the August meeting ([77]–[79]).

ACB answered in writing. Kiwibank issued a preliminary decision on 18 December, invited comment, and dismissed ACB for serious misconduct on 23 December 2025 ([89]–[92]).

ACB had earlier obtained interim reinstatement ([12]). The substantive investigation meeting was held in Napier on 24 June 2026.

“Kiwibank was also clear about what concerned it and why”

The dismissal predated the amendments that commenced on 21 February 2026, so the Authority applied the earlier law ([17]). The question under s 103A is what a fair and reasonable employer could have done in all the circumstances, and there can be more than one justifiable outcome ([95], citing Angus v Ports of Auckland Ltd (No 2)).

Member Alyn Higgins found that Kiwibank had identified legitimate concerns, investigated them, and was reasonable to start a disciplinary process ([109]). The allegations were clear enough that ACB understood them, which showed in ACB asking for further particulars and getting them. All four procedural requirements in s 103A(3) were met ([111]).

The calls were available

ACB said they never had meaningful and usable access to the call material needed to test the allegations. The Member did not accept that ([110]). Kiwibank had provided links to the actual calls, paid time to consider them, several reschedules, and an offer of more time to review the calls some two months before the decision. ACB later said illness had prevented a review of the calls, but still commented at length on the allegations.

“Did not have to cease the disciplinary inquiry”

ACB’s central argument was that the call and break patterns were happening in a known medical, training, and accommodation context, and should have been managed as health, capacity, coaching, or performance issues rather than as misconduct ([112]).

The Member answered it with good faith, which binds both parties. Citing Dunn v Waitemata District Health Board, the Member said an employee must give the employer adequate information about an underlying medical issue, and an employer whose action may be affected by an employee’s health should actively seek medical information, consider the employee’s input, and keep the process responsive ([117]–[119]). Kiwibank had done that. It was not then obliged to stop the disciplinary inquiry and move to a medical process ([127]). What it received in return was more and longer medical certificates, without information on prognosis or a practical return to work ([128]).

The other claims

The unjustified disadvantage claims failed for the same reasons ([136]). The end of paid supported leave was not a disadvantage either. That leave was discretionary, ACB had received about 22 days of it with no statutory sick leave entitlement yet, Kiwibank consulted before stopping it, and ACB accepted it was discretionary ([139]). There was no evidence of disability discrimination ([142]–[143]), and no breach of good faith, including in the timing of the final pay over the Christmas shutdown ([145]–[147]).

Outcome

All of ACB’s claims failed and no remedies were awarded ([148]–[150]). Costs are reserved ([152]). This is a first-instance determination, open to challenge in the Employment Court within 28 days. ACB has already been to the Court once in this matter, on non-publication ([3]).

Our view

This case has nothing to do with AI. Genesys routes calls and records statuses. But the shape of the dispute is one we expect to see more often as monitoring becomes automated, and increasingly model-driven. A system flags an employee, the employer acts, and the employee says the flag was mistaken for the proof. ACB put that argument squarely ([100]). It failed because of what Kiwibank did between the flag and the letter.

Read the chronology again and the sequence is plain. The review raised a concern. The manager put it to the employee informally and heard the explanations. He tested them against the records, which meant the call itself, the day’s fault pattern, and who ended the call. He listened to more calls. Then the employee got the same recordings, and time to answer. By the time the allegation was framed, the bank was relying on what happened on the calls, not on what the dashboard said about them.

That reading is ours. The Authority did not frame the case as a lesson about metrics and evidence. Nor did it require an independent technical investigation. The bank tested the technical explanation against its own records, and ACB’s earlier statements that they were coping did a good deal of work ([113]). An employer should not count on that. Where an employee has been open about their health and asked for help, the answer to “you treated a health pattern as misconduct” is harder to give.

Where the flag comes from an AI tool, the gap between flag and evidence gets wider. A status log records what happened: the customer was on hold for 20 minutes. A model’s output is often an inference, such as a risk score, a productivity rating, or a prediction that someone is avoiding work. You can play an employee a recording. You cannot play them the reasoning of a model you do not understand yourself. If the employer cannot get from the score back to events, it has nothing to put to the employee that the employee can actually answer, and s 103A(3)(c) asks for a reasonable opportunity to respond.

The working test is three questions. Can you move from the system’s flag to the underlying events? Have you tested the employee’s explanations against those events? And has the employee had the same material you are relying on? Until the answer to all three is yes, the flag is a lead, not an allegation.

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.