Benjamin Thomas v Matthew Scott and Patricia Scott trading as Infinity Dairy [2025] NZERA 592

This determination involves two personal grievances: unjustified disadvantage (an indefinite paid suspension) and unjustified dismissal by constructive dismissal (a resignation caused by serious employer breach and prolonged silence). The case also highlights how an employer's failure to communicate can breach good faith and destroy the employment relationship. The full determination is embedded at the end of this page.

Background

Mr Thomas responded to a farm employment advertisement and disclosed that he had autism, dyslexia, dyspraxia and ADHD. At interview (2 November 2022), he also disclosed he used prescribed medicinal cannabis. The employer did not raise concerns at that time. Mr Thomas began work on 28 November 2022. He was also provided a house on the farm under a service tenancy.

Over time, disputes developed about pay deductions (tax and KiwiSaver anomalies) and the terms of an employment agreement that was later produced. Mr Thomas signed the agreement only in part on 29 August 2023 and attempted to discuss disputed clauses. He said communication attempts were ignored. In early 2024, solicitors became involved. Letters seeking to resolve disputed clauses were sent. No meaningful response followed.

Stress leave, the cowshed meetings, and the suspension

Mr Thomas took stress leave and later a period of leave after a sprained wrist incident. He then experienced a significant mental health event described as an "autism episode" and panic attack. Shortly after, he was called to a meeting in the cowshed (29 April 2024) and told he was being placed on paid suspended leave while the employer addressed unspecified "health and safety risks". No particulars were given.

A further meeting (30 April 2024) focused on medicinal cannabis. Mr Thomas provided a prescription and a medical report from a specialist cannabis clinic stating there would be no health and safety issues. On 6 May 2024 he was told he would be subject to disciplinary action for prescribed medicinal cannabis and would remain on paid suspension. The employer said a solicitor letter would follow, but it never did.

Why the suspension was unjustified disadvantage

The Authority treated the suspension as effectively indefinite and found it was not justified, both substantively and procedurally. The employment agreement allowed paid suspension only in circumstances of alleged serious misconduct while an investigation was carried out. The employer's vague "health and safety risks" statement, without any detail, did not objectively amount to alleged serious misconduct.

The basis for the suspension also shifted. The employer then focused on prescribed medicinal cannabis even though it was disclosed before employment and a clause relied on referred to non-prescribed drugs or stimulants. In addition, the employer's extended unresponsiveness and lack of communication breached good faith obligations under s 4 of the Employment Relations Act 2000.

Constructive dismissal: resignation caused by serious breach and silence

After months with no progress, no disciplinary letter, and no clear return-to-work pathway, Mr Thomas raised a personal grievance about the suspension and received no response. He then resigned after about three months of silence. The Authority applied the constructive dismissal principles from Court of Appeal authority and focused on whether the employer breached duty in a sufficiently serious way and whether resignation was a reasonable response.

The Authority found there was no real disciplinary investigation at all, no meaningful particulars of any alleged misconduct, no communication about timing or outcomes, and prolonged silence. This was treated as dismissive/repudiatory conduct that destroyed the employment relationship and made resignation reasonably foreseeable. The result was a finding of unjustified constructive dismissal.

Remedies and orders

Mr Thomas obtained new employment within two weeks, but at a lower weekly wage and in Southland. Lost wages were assessed as the difference between expected Infinity earnings and actual earnings for three months. Compensation was assessed separately for (a) the disadvantage and (b) the constructive dismissal. The Authority found no blameworthy contribution by Mr Thomas, so there was no reduction under s 124.

Practical takeaways

• Silence can be a breach: prolonged failure to communicate can breach good faith and can turn a suspension into a constructive dismissal problem.
• Suspension must be anchored to the contract and a real process: if suspension is justified by "investigation", there must actually be an investigation with particulars, steps, and timeframes.
• Prescribed medicinal cannabis is not the same as illicit drugs: if an employer wants to manage risk, it needs a lawful, evidence-based process, not vague allegations.
• Constructive dismissal focuses on causation and seriousness: the breach must be serious enough that resignation is a reasonable and proportionate response.
• Mitigation matters: obtaining new work quickly can limit lost wages, but does not prevent significant compensation where conduct is serious.

Read the full ERA determination (embedded)

If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Mobile / tablet tip: Some browsers do not display embedded PDFs reliably. Use the Open button above.

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