A Nelson café fired him by email after a tense customer encounter, but the Authority saw it differently
The Employment Relations Authority has ruled that a Nelson café unjustifiably dismissed a worker by email, even after CCTV captured him placing his hands around a customer's throat during a heated exchange on the shop floor.
In a determination dated 8 May 2026, Authority Member Alyn Higgins found that The Deck Tāhuna Limited, which runs a café at the Tāhuna beach holiday park, sent Lyon Kawhaaru away from his job through a 4.50pm email on 6 June 2024, and then leaned on an abandonment defence that did not stack up against its own employment agreement.
The story started two days earlier. On 4 June 2024, a customer he knew, anonymised in the determination as QDM, came to the counter where Kawhaaru was working. The two had what Kawhaaru described as a friendly relationship, and QDM sometimes confided in him. During the conversation QDM became agitated and lunged. Kawhaaru, by his own account, raised his open palms in a non-threatening gesture, then placed his hands around QDM's throat, forcing him to step back. He immediately apologised, told QDM he meant no harm, and the customer left. CCTV captured the exchange but had no audio.
The next day, QDM told café co-director Debbie Wilkes he wanted to lay a formal complaint. On 6 June, Wilkes asked Kawhaaru for his written account. He sent it, then texted: "I'll see you on Saturday." Five hours later, an email from Kevin and Debbie Wilkes arrived. It reproduced the serious misconduct clause of his employment agreement, which listed "sexual or other assault" among eight categories of dismissable conduct. The email told him he could not return to the premises because of an expected police trespass notice and said: "I do believe it will result in instant dismissal effective from 4th of June."
Kawhaaru replied within minutes that the move was "quite incredible – unbelievable actually" and said he would seek advice on challenging the decision. A follow-up from the Wilkes that day said, "Unless QDM changes his mind I have no option," and later, "This is completely out of my control now." When Kawhaaru asked about his Saturday shift, Wilkes responded the next day: "I know it's not nice but I do care for you a lot and I feel I have had all my choices removed."
Kawhaaru never came back. He never received a trespass notice. He was never charged. His final pay landed on 10 June 2024.
The Wilkes told the Authority they had not actually dismissed him. They had intended to start a process, expected him to come in to discuss the incident, and treated his absence on Saturday 8 June as abandonment. Mrs Wilkes also told the Authority she had contacted Employment New Zealand and been advised to suspend Kawhaaru on pay while the matter was addressed. His employment agreement allowed for that step. It never happened, because she expected him to make the first move.
Higgins did not accept the abandonment argument. Applying the objective test from Cornish Truck & Van Limited v Gildenhuys, he concluded it was reasonable for Kawhaaru to read the 6 June emails and texts as the end of his job. The serious misconduct clause itself required a "fair process," but the email never told Kawhaaru a process was underway, never invited him to a meeting, and never offered paid suspension.
The abandonment argument fell apart on its own terms. Kawhaaru's employment agreement allowed abandonment only after three working days without contact and after the employer made reasonable efforts to reach the worker. Neither condition was met.
Higgins also rejected the employer's suggestion that Kawhaaru had set the situation up to sue. "Very little evidence to support this claim from the respondents was put forward," he wrote, noting Kawhaaru had described enjoying the work and had suffered personal and financial difficulties after losing it.
On remedies, the Authority awarded $10,000 for hurt and humiliation, $9,028.50 gross in lost wages over 13 weeks, $722.28 in holiday pay, and $292.52 in KiwiSaver contributions. But Higgins also found Kawhaaru had contributed to the situation that gave rise to his grievance. "I was not satisfied that Mr Kawhaaru needed to touch QDM's throat during the incident and had he not done so then this situation may very well not have arisen," he wrote. All financial remedies were cut by 25 per cent.
The final orders against The Deck Tahuna Limited in Kawhaaru v The Deck Tahuna Limited: lost wages of $6,771.38 gross, holiday pay of $541.71, KiwiSaver of $219.39, and compensation of $7,500. Penalty claims against the company and against the Wilkes personally were declined.
