ERA splits decision after three operators refused to work with the same colleague
Three terminal tractor operators told their employer they would not work with a particular loader operator. Two lost their jobs. Only one wins interim reinstatement.
In a determination issued on 30 April 2026, the Employment Relations Authority ordered Qube Ports NZ Limited to interim reinstate Paul McMillan, a permanent terminal tractor operator at the Port of Gisborne, while declining the same remedy for his colleague Dion Robin, who was on a casual contract.
The story began on the evening of 8 January 2026. It was the first major vessel operation after the holiday shutdown, scheduled to begin at 7pm. Qube had originally planned to run four gangs but, due to other issues, was already down to three by the start of the shift. Before loading commenced, all three terminal tractor operators rostered that night, including McMillan and Robin, said they would not work with the loader operator.
Qube's managers took the simultaneous nature of the refusals, the similarity of explanations, and the operators' use of collective pronouns as signs of a coordinated walk-off, a characterisation the applicants dispute. After fact-finding meetings on 19 January 2026 and disciplinary letters on 22 January 2026, McMillan was dismissed for serious misconduct on 27 February 2026. Robin, the casual, was told the same day that his actions amounted to serious misconduct and that he would not be re-engaged.
Both men raised personal grievances on 3 March 2026, arguing the refusals were a health and safety matter, not a disciplinary one.
The friction with the loader operator was not new. McMillan said that in 2024 the loader operator drove into him while he was still attached to his trailer. In February 2025, he emailed the port manager about the loader operator's attitude and work practices. Robin says he filed two incident reports in October and December 2025, the second alleging the loader operator loaded logs onto a trailer while a tractor was still attached. Qube says CCTV footage later contradicted aspects of the applicants' accounts and that the matter was treated as a communication issue rather than an unsafe act. Those facts remain in dispute.
Authority member Sarah Blick found McMillan had an arguable case that his dismissal was unjustified. She noted Qube had not produced clear evidence of how it had investigated and resolved the workers' earlier safety concerns. McMillan says he had previously refused to work with the same loader operator without being disciplined, including on a recent shift when Duty Operations Manager Lyric Jacobs simply covered for him.
Robin's case was complicated by his employment status. His collective agreement and individual terms described him as a casual engaged on an "as and when required" basis. He disputed that, producing payslips, bank statements and an Inland Revenue income summary he said showed he was working full-time hours. The Authority found he had a weakly arguable case that his engagement was actually ongoing, but said the question could only be settled at a substantive hearing.
That uncertainty cost him the interim remedy. "While the impact on Mr Robin is acknowledged, the uncertainty around his status and expectation of ongoing work means the Authority is not satisfied the balance of convenience favours him in this interim period," Blick wrote.
There is also a new legal backdrop. Sections 123B and 123C were inserted into the Employment Relations Act 2000 on 21 February 2026, limiting remedies where an employee's behaviour contributed to the situation that gave rise to the grievance, and ruling out reinstatement and compensation in some of those cases. The applicants argued most of the conduct predated the changes. The Authority disagreed, finding the law in force at the date of dismissal governs the case. Whether the new sections will ultimately bite on the facts is yet to be decided.
McMillan must be back on the payroll within two days of the determination and rostered within seven. His reinstatement is also subject to an undertaking that he will abide by any order the Authority may later make for damages Qube sustains as a result of the interim reinstatement.
The case is a reminder that a "casual" label on paper can cut both ways, that repeated worker complaints about a colleague need a documented investigation and a clear answer back to staff, and that the line between misconduct and a protected refusal to work on safety grounds can turn on the paperwork an employer keeps.
