Your termination process may not hold up if alternatives weren't genuinely explored
New Zealand's Court of Appeal is set to answer a critical question: can a single missed procedural step make a termination unjustified?
On 14 April 2026, the Court of Appeal granted Jetconnect Limited leave to appeal an Employment Court ruling that the airline had unjustifiably dismissed one of its pilots, Captain Phillip Tighe-Umbers.
The case begins in 2022. Jetconnect terminated Captain Tighe-Umbers on 24 April 2022 for non-compliance with the COVID-19 Public Health Response (Vaccinations) Order 2021. Under Schedule 3A of the Employment Relations Act 2000, which was in force at the time, the airline was entitled to terminate an unvaccinated employee with three months' paid notice. That right came with a condition: before issuing any termination notice, the employer was first required to ensure "all other reasonable alternatives that would not lead to termination of the employee's employment agreement have been exhausted."
Captain Tighe-Umbers initially pursued a personal grievance claim through the Employment Relations Authority, which found in Jetconnect's favour. He then challenged that outcome in the Employment Court.
Judge King, in a decision dated 4 July 2025, found that Jetconnect had not met that threshold. The Court identified a specific alternative that should have been considered: offering to place Captain Tighe-Umbers on leave without pay while the airline retrained its existing pilot workforce. Jetconnect had not explored that option. Instead, it had applied a blanket company-wide refusal to grant leave without pay, which the Court found was inconsistent with its obligations under Schedule 3A.
The Judge concluded: "No fair and reasonable employer could have said it was not in a position to approve any period of LWOP in the above circumstances."
Significantly, the Employment Court did not then conduct any further analysis under section 103A of the Act, which asks whether an employer's actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred. The Court treated the procedural non-compliance as sufficient, on its own, to establish unjustified dismissal.
Jetconnect challenged that approach, arguing the Court had made two errors: that it considered events arising after the dismissal decision, rather than limiting its assessment to circumstances at the time; and that it applied a standard of what a fair employer would have done, rather than what one could have done. Jetconnect also argued that the Court's reasoning effectively required it to unilaterally impose leave without pay on an employee who had not sought it, running counter to contract principles and the employee's individual choice.
Captain Tighe-Umbers' counsel submitted that the Employment Court's finding was one of fact and therefore not appealable, and that the repeal of Schedule 3A on 26 November 2024 meant any question of law was no longer of general or public importance. The Court of Appeal agreed that the non-compliance finding was factual and not independently appealable. However, it found a broader legal question in the judge's approach: by treating that non-compliance as sufficient, on its own, to establish unjustified dismissal without further analysis under section 103A, the Employment Court appeared to have answered a legal question that had not yet been squarely resolved. The Court also rejected the argument that the repeal had made the question moot, noting that several claims of unjustified dismissal arising from purported terminations under Schedule 3A had already been determined by the Authority or the Employment Court, and the question of law had not been squarely addressed in any of them.
The Court granted leave to appeal on that question of law and noted that if the question is answered "no" — meaning non-compliance alone is not enough — a full assessment under section 103A will still be required. The parties have been directed to address whether, in that event, the Court of Appeal should conduct that assessment itself or refer the matter back to the Employment Court. Costs were reserved pending determination of the appeal.
The case highlights the legal risk of applying blanket company-wide policies without individual consideration of alternatives to dismissal. Until the Court of Appeal rules, the Employment Court's position stands: exhausting reasonable alternatives before termination is not just a formality.
