ERA finds phone termination unjustified after the company failed to follow fair procedures
The Employment Relations Authority (ERA) found that a worker was unjustifiably dismissed when his employer terminated him during a phone call, with the Authority ruling that the company's subsequent attempt to withdraw the dismissal came too late without the worker's consent.
The worker claimed he was dismissed and disadvantaged during his three-month employment, including allegations of deportation threats and denial of rest breaks.
The company denied that the dismissal occurred and argued that the worker voluntarily abandoned his job by not returning to work.
Employment arrangements and workplace operations
The worker commenced employment at a civil engineering company in October 2022, following a meeting with the company director in Fiji to discuss the opportunity to work in New Zealand as a heavy machinery operator.
They discussed work arrangements, including duties, hours, and accommodation, before the worker agreed to take the position.
The company operated from a yard where equipment and vehicles were kept overnight.
Workers typically started their day at the yard to collect equipment before traveling to various work sites, though those with personal transport could go directly to job sites. Workers without transport could carpool from the yard using company vehicles.
The worker reported to a supervisor daily and maintained regular contact with the company director, who frequently visited work sites.
During his employment, the worker was assigned to various locations around South Auckland, operating diggers and heavy machinery.
Travel time dispute and timesheet changes
The worker claimed he should have been paid from when he arrived at the yard rather than only from arrival at work sites.
He argued that arriving at the yard meant his working day had started and sought payment for three hours on days he traveled from the yard to sites and back.
The company opposed the claim, saying there was no formal agreement to pay workers for yard attendance before moving to designated work sites.
Company witnesses confirmed during the investigation that workers who drove vehicles from the yard were paid from the yard arrival time, and evidence showed the worker occasionally drove vehicles.
Timesheet evidence revealed five occasions where the worker's start time was changed from 6:00 AM to 7:30 AM, with no changes to the 5:00 PM finish time.
The ERA found these amendments reflected the worker's dispute with the company about travel time payment and ordered the company to pay $213 gross for seven and a half hours at the worker's hourly rate of $28.50.
Vehicle provision and rest break claims
The worker claimed the company director promised him use of a vehicle during their Fiji meeting as part of his employment package.
The company denied making such an offer, and the ERA found little evidence beyond the worker's own testimony to support this allegation.
The worker's employment agreement contained no reference to vehicle provision as part of his work arrangement.
The Authority determined the vehicle claim could not be reasonably proven and was therefore unsuccessful.
For rest breaks, the worker claimed he was denied opportunities to take breaks during work.
The ERA found evidence from former employees confirmed they received regular breaks in line with statutory requirements, with little evidence showing others witnessed the worker being denied breaks or the worker raising such concerns during employment.
Workplace treatment allegations assessed
The worker alleged he was threatened with deportation on numerous occasions when the director was unhappy with his work.
The company denied the allegation and stated it had no power to deport employees. The ERA found assessing these claims difficult because the director did not give sworn evidence, and no other witnesses could confirm the allegations.
The worker also claimed he was required to perform shoveling work outside his machinery operator role, stating he was told he could do truck driving when digger work was unavailable.
The company opposed this, arguing it would be counterproductive to hire a heavy machinery operator at approximately $30 per hour for shoveling.
The ERA found it unlikely the worker's duties were limited exclusively to machinery operation, noting he would occasionally be required to perform some shoveling as preparatory work for efficient equipment operation.
Former employees who worked on the same sites confirmed the worker was always seen operating a digger, making this claim unsuccessful.
License course request and dismissal phone call
In December 2022, the worker initiated the conversion of his Fijian driver's license to a New Zealand license, requiring attendance at a three-day course.
On 15 January 2023, he received a last-minute notification of a course opening and texted his supervisor that he could not attend work to take the opportunity.
The supervisor informed the company director, who subsequently called the worker for a discussion.
The worker alleged the director dismissed him during this phone conversation and sent a follow-up text requesting written confirmation of his termination.
The following day, the director's son emailed, stating the worker was not dismissed and sought his return to work while issuing a verbal warning.
The worker and the company continued exchanging emails about whether dismissal occurred during the phone call.
These employment issues were never resolved before the company closed operations later in 2023. The worker started employment with a new employer in February 2023.
Dismissal assessment and liquidation proceedings
The ERA found the company director verbally dismissed the worker during the phone call, supported by the worker's text message seeking written termination confirmation.
The Authority determined that although the company attempted to reverse the dismissal decision, this attempt came too late under legal precedent.
The ERA ruled that once a termination notice is given, it cannot be unilaterally withdrawn without consent from the other party to the employment relationship.
The Authority found no evidence that the worker consented to withdrawing the dismissal, and the company failed to follow fair dismissal procedures or employment agreement provisions regarding summary dismissal.
The case was complicated by the company entering liquidation in June 2025.
The Authority had no jurisdiction to continue proceedings without either the liquidator's consent or a High Court order. The liquidator confirmed consent for the Authority to determine the worker's claims, allowing the case to proceed.
Remedy determination and contribution assessment
The worker claimed he suffered stress from the inability to meet financial responsibilities after his sudden dismissal, forcing his wife to work double shifts to cover rent and expenses.
He also faced costs for applying for new work visas to secure further employment.
The company provided no submissions opposing remedies. The ERA awarded $4,000 compensation for hurt and humiliation despite the worker providing no medical evidence or job search documentation, accepting that the worker suffered distress from the company's actions during his three-month employment.
The Authority declined to reduce remedies for contributory conduct, finding the worker did not sufficiently contribute to the circumstances giving rise to his dismissal.
The total award comprised $213 in unpaid wages, $4,000 in compensation, and $71.56 reimbursement for the filing fee, all payable within 28 days.
