ERA finds employer followed no process despite performance concerns never formalised
A workforce specialist working at a client's construction site in Napier claims he was unjustifiably dismissed via text message after failing to properly request leave through his employer.
The employer denies unjustified dismissal, claiming the worker breached his employment agreement by failing to request or report leave as required and by poor communication throughout his employment.
The worker seeks compensation for the sudden dismissal and payment for the contractual notice period he did not work. The employer raised performance concerns from the client and other employees, but never formalised these complaints through a disciplinary process before the dismissal occurred.
Employment arrangement and work structure
The employer is a labour supply company providing staff who work in various industries, including construction, logistics, infrastructure, landscaping and demolition. The general manager said the employer was a new business with approximately nine employees at the time the worker was employed.
The worker said he was approached by the HR Manager of the employer with whom he had previously worked, who asked if he was interested in joining his team. The worker was working as a carpenter on a casual basis at the time, so he accepted the offer.
The worker was emailed an individual employment agreement, which he read, signed and returned. The terms included that he was engaged as a workforce specialist/carpenter with a minimum of 30 ordinary hours per week, Monday to Sunday inclusive, paid $35 per hour for jobs carried out outside of Auckland.
The agreement stated that the timing of taking annual holidays needed to be approved by the company first, and the employee shall give notice to an authorised company representative as soon as possible before the expected start time on the first day of absence. The agreement specified that no more or no less than four weeks' notice of termination of employment shall be given by either party.
The worker's first day with the employer was 17 January 2024. He was located at a construction site in Napier, which was owned by the employer's client. The client was a skilled builder who worked at the Napier site himself and supervised, with the approval of the employer, the employees which included two of the employer's employees.
The worker said he usually traveled down to Napier from Auckland to commence work on a Monday, returning for the weekend on Friday, although some weeks he might work on a Saturday or work longer hours during the week.
Performance concerns and worker's communication
The general manager said the worker was a difficult employee and she received complaints by email from the other workforce employees who had been placed at the Napier site, and from the client.
These complaints were not raised at the time of receipt with the worker. On 14 February 2024, the client text messaged the general manager asking that she send a replacement for the worker.
The general manager said she attempted to contact the worker by text messages, emails and telephone calls, but the worker ignored the attempts to contact him. When asked if she had invited the worker to meet with her, the general manager said he refused to do so. The worker confirmed that he had not been communicative with the employer.
On 17 February 2024, the worker text messaged the general manager asking, "How much longer am I contracted for?" He said he had asked because he had found it difficult to find employment prior to being engaged by the employer, and he knew he was subject to a probationary period.
The general manager responded that he could read his contract and then told him that the client did not require him back on the Napier site.
There were a number of text messages exchanged on 17 February 2024, with the general manager writing that the client did not want him back, they told her that many times, he should not go there on Monday, they complained many times he left early, he was absent at work, he was not compliant with the employer, many calls were not answered, and emails sent to him a couple of weeks earlier were not answered.
The worker responded that he would speak to the client directly, and the general manager responded, "You work for me, not him. He deal with me I deal with you." The general manager said she advocated with the client on behalf of the worker, and the client agreed to let him continue working at the Napier site.
The general manager text messaged the worker, forwarding him messages between her and the client and stating, "Do your best to impress him. All the best. Communicate well please."
Worker's absence and leave requests
On Monday 18 March 2024, the worker said his daughter had a doctor's appointment which he attended with her. He text messaged the client the night before to inform him about the appointment and that he would travel down to Napier afterwards, ready to commence work on the site the next day, Tuesday 19 March 2024.
The worker did not inform the employer of the leave on Tuesday 19 March 2024. The general manager said the client telephoned her during the following week and told her that the worker had taken the previous Monday off and also informed him he would not be working the Tuesday after Easter Monday.
The general manager text messaged the worker on 28 March 2025 asking about his reason for missing work the previous Monday, stating they had it as a day in lieu.
The worker messaged back stating he had an appointment with GP in Auckland that Monday and would also be absent the upcoming Tuesday as he had matters in Auckland he had to attend, noting the client was aware and that was the reason he had worked late hours that week.
The general manager responded that if he decided to have a day off on Tuesday he was not entitled to get that Monday, she was replacing him soon as he worked for her, he should tell her about his day off not the client, he should read his contract again, he failed again in communication, she did not accept that he failed to tell her about last Monday, and he decided to have a longer weekend using family stuff as a reason.
The worker accepted when questioned that he had not informed the employer that he was intending to take annual leave and confirmed that he was aware he was expected to do so. He had decided to take Tuesday as annual leave because it was the Easter weekend, and taking Tuesday would lengthen the weekend break.
Dismissal communications and immediate aftermath
In response, the general manager informed the worker that he would not be paid for Easter Monday if he was taking leave on the following Tuesday. When the worker questioned this on the basis that Easter Monday was a public holiday, the general manager responded that she wanted a written explanation for his absence on Monday 18 March 2024.
The worker said he did not believe the general manager was serious when she stated in her text message that she was replacing him. This statement was however repeated in another message in the same message stream in which the general manager wrote "You work as you like and decide... I am replacing you I had enough."
In response, the worker responded "I will be paid for public holiday on Easter Monday." The general manager responded that she would authorize payment for Easter Monday provided the worker provided a letter from the GP. After a few further message exchanges, the general manager text messaged "I am giving you, your notice 4 weeks as off today. I have entered docs to dismiss you but I am just giving you a notice today... miss work on Tuesday then you do not have to come back."
The worker asked when his final day would be, and the general manager responded that she had sent him an email. In subsequent text messages, the worker said he did not receive an email and asked several times for confirmation of his final day.
In her responses, the general manager repeated that she had sent an email, but the worker said he did not receive any email with his final date in it. The worker said he was working on the Napier site during the text message exchanges on 28 March 2024, so at the completion of his workday, which he understood to be his last working day with the employer, he explained what had happened to the client. The client then told him he could continue working directly for him at the Napier site.
Subsequent email exchanges and settlement attempts
On 30 March 2024, the worker emailed the general manager stating he required an immediate response to his request for his 8 percent holiday entitlement, as she did not allow him the opportunity to complete the four weeks' notice period that she had given him.
He stated he was more than happy to complete this period, but if, for any reason, the employer had decided not to allow him that opportunity, there were no legal grounds to withhold the entitlement from him.
The general manager sent an email to the worker at 9:14 am on 1 April 2024 stating that the issues were the worker's absences, which had not been either requested or authorised, writing "you are employed and paid by us, and it is part of the requirements that you follow the reporting procedures in a timely manner."
The worker responded by email stating that, as stated by the general manager in previous messages, he had not resigned, she fired him on unfair grounds on Thursday, 28 March, and to his knowledge, that was his last day employed by her.
The general manager emailed in response that the worker was wrong and he should read her email carefully, that if he brought the GP appointment evidence and attended "work tomorrow as you have applied for leave in advance, then you are good to go."
The general manager added a postscript to the email stating she was willing to give him a last chance for his employment based on two conditions: provide evidence of the doctor appointment, and attend work the next day, as he failed to request leave and it was too late to find someone else.
The general manager followed up the email with a text message stating that, based on the worker's emails, he could not fulfill the conditions and was resigning. The worker responded that he was not resigning, but the general manager had dismissed him, and he required his final pay and holiday entitlement.
Authority's unjustified dismissal determination
The ERA applied the test of justification, requiring that the employer acted in a manner that was substantively and procedurally fair. The general manager claimed that there had been disciplinary issues arising from the worker's performance; however, there had been no disciplinary process followed in relation to them.
The allegations made by the client that the worker was not performing diligently and/or was causing issues with the other employees on site at Napier were not raised with the worker until in the text message on 17 February 2024.
The Authority found the allegations made against the worker were never formalised in a disciplinary process. As a result, the worker was deprived of an opportunity to respond to them and to have his explanation genuinely considered by his employer. Nor was the worker informed by the employer that his performance was not acceptable, or that failing improvement, his continued employment could be in jeopardy.
The ERA found that the worker did not adhere to the terms of the employment agreement by not informing the employer that he required leave on 18 March 2024 or that he intended taking leave on Tuesday 2 April 2024, although he knew that pursuant to the agreement, leave needed to be approved by the employer before it was taken.
However, the Authority determined the employer did not address this as a performance issue and commence a disciplinary process as a fair and reasonable employer would have been expected to do.
Dismissal findings and procedural failures
The ERA found that what did happen was that in the text messages sent to the worker on 28 March 2024, the general manager raised the absence issue and she informed him "I am replacing you soon..." and "I am giving you your notice 4 weeks as off today."
The Authority found that these statements effectively constituted a "sending away" as defined by case law as the termination of employment at the initiative of the employer.
The ERA accepted that in subsequent text messages and emails the general manager invited the worker to meet with her and submits that her intention was to remove the worker from the Napier site to work in Auckland, however the Authority found that the text message on 28 March 2024 which stated "I am giving you, your notice 4 weeks as off today" is unequivocal and therefore any subsequent statement occurs after the dismissal had taken place.
Whilst the Authority accepted that the employer was a small employer and as such lacked the resources normally available to a larger employer when dealing with disciplinary matters, it considered that there were major rather than minor flaws in the procedure adopted by it in terminating the worker's employment which cannot be explained merely by the fact the employer was a smaller employer.
The ERA found that in dismissing the worker, the employer followed no process. It has failed to demonstrate that its actions and how it acted in the lead up to the worker's dismissal were what a fair and reasonable employer could have done in the circumstances at the time of dismissal.
Accordingly, the Authority found no substantive or procedural justification for the dismissal, determining the worker was unjustifiably dismissed.
