ADO v JOAN FERNIE CHARITABLE TRUST BOARD [2025] NZERA 3

This page summarises and embeds an Employment Relations Authority (ERA) determination. It is not legal advice.

Story in plain English

A penalty determination was made.

In summary, ADO was given notice of termination on the grounds of redundancy, with his employment to cease on 15 January 2024. After that, By letter dated 10 November 2023, ADO was given notice of dismissal with their employment to cease as of 15 January 2024. Later, On 23 November 2023, ADO was sent an email from Doug Abraham, representative for the JFCT, which included a statement that ADO had not been dismissed from their employment. The determination records that On 15 December 2023, Mr Barham emailed ADO's representative, purportedly on a without prejudice basis,4 noting various matters as to the (quoted wording omitted). The Authority notes that However, The Authority did not accept that the allegations of misconduct were irrelevant to the decision to proceed with issuing the restructuring proposal, nor were they irrelevant to decision to implement the proposal or to dismiss ADO. Ultimately, Instead, The Authority found that the commercial basis for the decisions made were incidental to ulterior motives relating to conduct and performance. In the end, The Authority found that the dismissal was substantively unjustified as having been motivated by, in significant part, matters other than genuine commercial considerations and as a pretext for dismissing ADO.

Key case markers

• This determination comes from the Wellington registry.
• The parties are ADO (employee) and JOAN FERNIE CHARITABLE TRUST BOARD (employer).
• Hearing date noted: 20 and 21 August 2024 (2 days) and 20 September and 8 October 2024 (2 days).
• Authority member: Rowan Anderson.

Key events described

• ADO was given notice of termination on the grounds of redundancy, with his employment to cease on 15 January 2024.
• By letter dated 10 November 2023, ADO was given notice of dismissal with their employment to cease as of 15 January 2024.
• On 23 November 2023, ADO was sent an email from Doug Abraham, representative for the JFCT, which included a statement that ADO had not been dismissed from their employment.
• On 15 December 2023, Mr Barham emailed ADO's representative, purportedly on a without prejudice basis,4 noting various matters as to the (quoted wording omitted).
• However, The Authority did not accept that the allegations of misconduct were irrelevant to the decision to proceed with issuing the restructuring proposal, nor were they irrelevant to decision to implement the proposal or to dismiss ADO.
• Instead, The Authority found that the commercial basis for the decisions made were incidental to ulterior motives relating to conduct and performance.
• The Authority found that the dismissal was substantively unjustified as having been motivated by, in significant part, matters other than genuine commercial considerations and as a pretext for dismissing ADO.
• However, on the material and evidence before the Authority, The Authority found that information necessary for the purposes of genuine consultation was not provided to ADO and that ADO was not in a position to meaningfully consider and respond to the proposal.
• The Authority found that ADO was unjustifiably dismissed from their employment.
• It is evident from the initiating email from Mr Barham on 16 April 2024, which referred to various performance concerns relating to tasks said to have been assigned to ADO by Mr Angland prior to his leave, that Mr Barham embarked on a course of making ill-advised allegations without due process.
• Such as ADO was unjustifiably disadvantaged by the making of unfounded allegations and the consequential actions of the JFCT, The Authority found that the relevant actions relate to a single course of conduct, although separate from the dismissal itself, and remedies should be considered on that basis.
• Additionally, the persistent allegations made against ADO, including from the time of the letter of 10 November 2023 containing allegations not relevant to the purported no fault redundancy process, have been demeaning and unwarranted.

Decision markers

• The Authority found it also failed to consider the reasonable suggestion made by ADO on 10 November 2023 of undertaking the Stock Manager role on a trial basis.
• The Authority found that the conduct concerns and the argument on 2 October 2023 were the predominant reason for the JFCT proceeding as it did.
• In relation to the issue of redeployment, The Authority found that the JFCT has not made out that its actions were those that would have been open to a fair and reasonable employer on all of the circumstances.
• Having regard to the mixed, but substantially conduct related motivations for proceeding with the proposal, The Authority found that the steps that followed, including the selection process for the Stock Manager role, were not approached genuinely with an open mind to ADO's ongoing employment.
• The Authority found that the dismissal was substantively unjustified as having been motivated by, in significant part, matters other than genuine commercial considerations and as a pretext for dismissing ADO.
• However, on the material and evidence before the Authority, The Authority found that information necessary for the purposes of genuine consultation was not provided to ADO and that ADO was not in a position to meaningfully consider and respond to the proposal.
• The Authority found that ADO was unjustifiably dismissed from their employment.
• The Authority found that the allegations were raised in a vindictive manner, were improperly raised in an accusatory and conclusionary manner, and that the allegations were unjustifiably disseminated to other persons.
• The Authority found that ADO was unjustifiably disadvantaged in their employment by the JFCT's putting the allegations to ADO in the absence of having a proper basis to do so.
• Such as ADO was unjustifiably disadvantaged by the making of unfounded allegations and the consequential actions of the JFCT, The Authority found that the relevant actions relate to a single course of conduct, although separate from the dismissal itself, and remedies should be considered on that basis.

Orders and payments mentioned

• Costs: Costs considered.

Note: figures above are extracted from the orders section (or the final orders wording). Check the PDF for full context and any gross/net directions.

Practical takeaways

• Redundancy determinations usually turn on genuineness and consultation quality.
• Unjustified disadvantage claims require both unjustified conduct and actual disadvantage.
• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.