Aaron Potter v Talley's Limited [2026] NZERA 412

This Employment Relations Authority (ERA) determination concerns the summary dismissal of Aaron Potter after a complaint connected with a vote for a health and safety representative (HSR) at Talley's Ashburton plant. Talley's alleged that Mr Potter had intimidated a colleague, tried to influence votes, and attempted to undermine the election outcome. The ERA found that Talley's did not properly investigate those concerns, did not clearly put the actual allegations or relevant material to Mr Potter, did not give him a fair opportunity to respond, and did not genuinely consider his explanations before dismissing him. It also found that the evidence could not reasonably support findings that Mr Potter had bullied the colleague or intimidated other employees over the vote. The dismissal was unjustified. The full determination is embedded at the end of this page.

Background: health and safety representative vote

Mr Potter had worked for Talley's from November 2021 in crew four, the fry pack-out team working night shifts at Talley's Ashburton plant. In June 2024 Talley's conducted nominations and voting for health and safety representatives for its workplace teams. Mr Potter and a colleague, identified in the determination as IMX, were both candidates for HSR for crew four. IMX was successful in the vote.

Mr Potter was confused by IMX's nomination because IMX had earlier said they did not want the role and would support Mr Potter's nomination. After the election, there were discussions between Mr Potter and IMX, messages in a crew four group chat, and a telephone call on 25 June 2024. The evidence showed Mr Potter encouraged IMX to continue in the role and at least attend the first health and safety meeting when IMX expressed uncertainty about doing it.

Talley's described the voting process as confidential. The Authority found, however, that it had few meaningful safeguards for confidentiality. Voting papers were issued and returned in a communal staff room, employees voted around others, some staff needed help completing the forms, and there was little privacy when votes were handed back to the organiser. There was no evidence that employees had been told the process was confidential or that they expected it to be confidential.

The complaint and the decision to dismiss

On 26 June 2024, IMX made a written complaint about Mr Potter. The complaint raised three broad concerns: an interaction between IMX and Mr Potter's partner, Ann Miyazaki, concerning IMX's nomination; statements Mr Potter had made in the crew four group chat about wanting to know who had voted for him; and the telephone call on 25 June 2024, which IMX understood as pressure to attend a health and safety meeting and step down.

Talley's investigated and then invited Mr Potter to a disciplinary meeting by letter dated 3 July 2024. The invitation alleged that he had acted in an inappropriate and intimidating manner toward IMX, had tried to influence and intimidate other people's votes, and had attempted to undermine the voting process. Mr Potter attended a meeting on 4 July 2024, answered the allegations, was asked to wait outside briefly, and was then told the allegations had been upheld as serious misconduct. Talley's summarily dismissed him that day.

The Authority's required fairness framework

The Authority applied the usual justification test: whether Talley's actions, and how it acted, were what a fair and reasonable employer could have done in all the circumstances. To establish a fair process, Talley's needed to show that it had properly investigated the concerns, set them out clearly with relevant information, given Mr Potter a reasonable opportunity to respond, and considered his responses before deciding what happened and what sanction, if any, was appropriate.

The Authority found that Talley's failed every part of that process.

Failure to properly investigate

The investigation was materially incomplete. It was unclear whether Talley's had spoken to IMX or any other crew four employees about the alleged conduct before, during, or after the vote. To the extent any conversations occurred, there were no notes and no witness statements. On the available evidence, Talley's appeared to have relied largely on IMX's complaint and only two sets of messages between Mr Potter and IMX.

Talley's reviewed CCTV footage from the staff room when employees were voting or discussing the vote. That footage showed that several people had been involved in helping or discussing the voting process. But the footage reviewed did not involve IMX. The Authority held that Talley's should have checked whether footage existed of the interaction between IMX and Ms Miyazaki, because that interaction was specifically raised in IMX's complaint.

Talley's had also not reviewed other potentially relevant messages. Mr Potter had additional messages that appeared relevant to the dispute, but neither the decision maker nor the site manager considered them. A fair investigation required Talley's to check whether IMX, Mr Potter, or other crew members held relevant messages before reaching conclusions.

The allegations were not properly put

The 3 July invitation letter was confused. It carried another person's name, said there were two allegations while containing three, and did not clearly state the precise conduct said to be objectionable. The first allegation referred to conduct on 18 June but appeared to span actions before, on, and after that date. The second allegation was expressed at a high level and did not explain what conduct was said to be intimidating or vote influencing, nor did it refer to the CCTV footage that appeared to be relied on.

The Authority considered that the actual concerns appeared to be: first, that Mr Potter had pressured IMX about the nomination and the HSR role; and second, that he had intimidated or pressured employees about their votes, then tried to undermine the election outcome or discover how individuals had voted. Those concerns were not properly articulated in the invitation letter and the supporting information was not provided in a way that allowed Mr Potter to answer them fairly.

No fair opportunity to respond or genuine consideration

Mr Potter did respond at the meeting. However, the meeting record, typed later from the manager's notes, suggested that Talley's was dismissive of his explanations and did not explore the issues fully. Because the allegations had not been clearly identified, Mr Potter could not give a full and informed response in any event.

Talley's also did not adequately consider Mr Potter's answers before deciding to dismiss him. Had it done so, the Authority found Talley's would have recognised the need for further enquiries, including speaking to Ms Miyazaki and other crew four employees, asking Ms Miyazaki about the 25 June telephone call, considering the messages held by Mr Potter, and speaking further with IMX about that call and those messages.

The serious misconduct findings were not sustainable

The procedural defects were enough to make the dismissal unjustified. The Authority also found that Talley's substantive conclusions could not reasonably stand. Based on IMX's complaint and Mr Potter's responses, a fair and reasonable employer could not conclude that Mr Potter had bullied IMX over the nomination or successful appointment as HSR.

Nor could a fair and reasonable employer conclude from the staff-room CCTV and the voting process that Mr Potter had intimidated employees or attempted to influence their votes. The evidence showed that several people were involved in explaining or assisting with voting, and the Authority accepted that Mr Potter's involvement was to help explain the process rather than to pressure people.

Talley's decision that Mr Potter had committed serious misconduct and should be summarily dismissed was therefore not one a fair and reasonable employer could have made in the circumstances. The dismissal was unjustified.

Good faith breach

The Authority separately found that Talley's failure to carry out a fair disciplinary process breached the duty of good faith. Talley's should have done more in its investigation and disciplinary process before deciding to dismiss Mr Potter.

The 2026 remedies amendments did not apply

Talley's argued that recent amendments limiting remedies where an applicant has engaged in misconduct or serious misconduct applied to Mr Potter's claim. The Authority rejected that argument. Mr Potter's rights to remedies were assessed as at the date of dismissal in July 2024, before those amendments took effect. The amended remedy provisions therefore did not apply.

Remedies and no contribution reduction

Mr Potter and Ms Miyazaki gave evidence that the dismissal had a significant emotional impact. Mr Potter was shocked and devastated, broke down after being dismissed, lost self-esteem, experienced sleeplessness and loss of appetite, and developed depression and anxiety. The Authority assessed compensation for humiliation, loss of dignity and injury to feelings at $20,000.

Mr Potter also established actual lost remuneration of $6,690.97 plus holiday pay of $535.28. This totalled $7,226.25 gross, which was less than three months' ordinary time remuneration and was therefore ordered under section 123(1)(b) of the Employment Relations Act 2000.

Talley's did not obtain any reduction for contribution. The Authority found that Mr Potter had not bullied, intimidated, or coerced crew four employees, had supported IMX in relation to the HSR role, and had not tried to influence votes. He had not behaved in a culpable or blameworthy way that contributed to the personal grievance.

Why this case matters

Health and safety representative elections can create workplace tension, particularly where candidates work closely together. That does not make disagreement, questions about the vote, or assistance with the mechanics of voting misconduct. Employers still need to identify what conduct is actually alleged, investigate it even-handedly, and distinguish a genuine workplace concern from an assumption formed after an election result.

This case is also a clear example of the risk in making a summary dismissal decision immediately after a disciplinary meeting. A short adjournment may be appropriate, but it does not cure an inadequate investigation, vague allegations, missing evidence, or a failure to grapple with the employee's explanation. Where the material is incomplete, the fair response is further investigation, not a pre-determined outcome.

Practical takeaways

• Define the alleged misconduct: do not rely on labels such as intimidation, bullying, or undermining a process without identifying the words, actions, dates, people and documents relied on.
• Investigate both sides: obtain relevant messages, speak to material witnesses, and review all available CCTV rather than only the footage that supports the initial complaint.
• Provide the relevant information: an employee must know the actual case they need to answer before a disciplinary meeting.
• Do not dismiss immediately on incomplete information: where an explanation identifies further evidence or witnesses, investigate that material before deciding the outcome.
• Election processes need safeguards: if voting is meant to be confidential, the process must be designed and communicated so confidentiality is actually protected.
• Summary dismissal requires a sound basis: serious misconduct needs both a fair process and facts capable of sustaining the conclusion.
• Good faith is not an afterthought: a poor disciplinary process can amount to both an unjustified dismissal and a breach of the duty of good faith.
• Know the applicable remedies regime: the relevant legal position is ordinarily assessed at the time the employee's rights accrued, including the date of dismissal.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination, [2026] NZERA 412. This article currently uses an AndersonLaw-hosted PDF copy pending any later ERA database link.