The employer called it theft and fired him immediately, but skipped every step of fair process
A general manager admitted to taking cash from the till and still won his unjustifiable dismissal claim in a January 2026 ERA ruling.
In a determination issued on 28 January 2026, the Employment Relations Authority (ERA) found BNS Co Limited and BNS Group Limited had unjustifiably dismissed Fuyu Zhuo, general manager of two hospitality venues in Orewa, Auckland.
Mr Zhuo had originally owned Oliver's Café and Coast Bites and Brews before selling them on 31 March 2023, agreeing to stay on as general manager for five years while also running his own nearby businesses, including a bakery called Sunflour, an ice cream parlour called Movenpick Orewa Limited that traded from Sunflour's premises, and Hello Manly.
Anh Thi Vo was appointed director of BNS on 1 February 2024 and grew concerned about insufficient financial separation between BNS and Mr Zhuo's businesses. Mr Chiv, who was to all intents and purposes the owner of BNS, engaged a specialist accountancy practice to conduct a forensic review of the BNS accounts, though the ERA discounted it after the accountant's representative, Mr Osborn, admitted the witness statements relied upon had not been verified as correct. The ERA also noted that Ms Vo confirmed in cross-examination that Mr Chiv had himself written her witness statement.
BNS also alleged Mr Zhuo breached his duty of fidelity by using BNS staff and resources for his own businesses without proper financial separation. The ERA found insufficient evidence to support this. A chef who had worked at Oliver's for five years told the Authority that after the sale, "the businesses helped each other, we worked as a family, we'd work anywhere, sell anywhere, we worked as a team."
By mid-2024, BNS faced serious cash flow difficulties. Mr Chiv's own evidence was that withdrawals from BNS accounts totalling some $465,000 were legitimate director drawings for RPW, while Mr Zhuo put the figure at over $400,000. Mr Zhuo resigned on 21 May 2024 with two months' notice, citing financial pressures and concerns that money was being laundered through BNS, after discovering High Court restraining orders had been issued against several individuals, including a Comancheros gang member and the person who had purchased BNS from him.
Before his notice period ended, Mr Zhuo entered Oliver's and took cash from the register to cover employee wages, doing so openly in the presence of Ms Vo and the Coast manager. BNS's dismissal letter, sent on 24 June 2024, alleged he had done so several times. It read in part: "As a matter of your breaching your contract for blatant dishonesty, this letter is notice to you that your engagement as manager ceases immediately, not from 25 July 2024." A trespass notice barring him from both premises accompanied the letter.
The ERA found BNS had conducted no investigation, given Mr Zhuo no notification of its concerns, and provided no opportunity for him to respond before the decision to dismiss was made. On that basis alone, the dismissal was unjustifiable.
The ERA found the harm significant, noting Mr Zhuo had been publicly vilified by BNS after his dismissal. It awarded $30,000 in compensation, reduced by 50 percent to $15,000 after finding he had contributed by taking the cash without authorisation. BNS was ordered to pay wage arrears from 2 to 24 June 2024, final holiday pay, and lost remuneration for the period 24 June to 21 July 2024, with interest on the wage arrears and final holiday pay. A $3,000 penalty was imposed on BNS, payable to the Crown, for deliberately withholding Mr Zhuo's final holiday entitlement.
For employers and people managers, the case is a reminder that the strength of a misconduct allegation does not make a dismissal justifiable on its own. The ERA's focus is on whether the employer investigated, raised concerns with the employee, and gave a genuine opportunity to respond before deciding to dismiss. The absence of a written employment agreement also proved critical: with none produced, BNS could not establish a restraint of trade, and the ERA found insufficient evidence that Mr Zhuo had breached his duty of good faith during the employment relationship.
