Brad Capper v CJS Construction [2023] NZERA 314

The ERA found a dismissal had occurred and was unjustified. The case is also useful on contribution, mitigation of lost wages, notice pay and the limits of the 90-day trial issue.

What happened

Brad Capper worked as a carpenter for CJS Construction for barely a month. After several days away from work, CJS director Callum Sheridan telephoned him. Mr Sheridan suggested the employment did not appear to be working and that the parties might consider going their separate ways. Mr Capper understood that he was being dismissed, reacted angrily and ended the call.

Mr Capper then emailed asserting he had been dismissed. CJS did not clearly deny that assertion or tell him to return to work. The Authority held that, viewed objectively, the employer's silence and subsequent conduct confirmed that the termination was at CJS's initiative. CJS accepted that, if a dismissal was found, it could not be justified because no proper process had been followed.

90-day trial point

Mr Capper assumed the dismissal was under a 90-day trial provision, but the Authority found CJS had not actually purported to invoke a trial period. It also observed that it was arguable a trial period never became a term because an employment agreement had not been entered into when employment started. The decision should therefore not be treated as a simple case where an employer relied on, and lost, a trial-period defence.

Contribution and remedies

The Authority found Mr Capper contributed significantly to the situation by unreasonably cutting off communication with his employer. It assessed contribution at 50%.

• Compensation: starting point $8,000, reduced 50% to $4,000.
• Lost wages: declined because adequate evidence of mitigation was not provided and there were other impediments to work.
• Notice pay: $1,520 for one week, treated as a wage recovery claim and not reduced for contribution.
• Costs: the parties remained able to apply for costs under the timetable in the determination.

Why the case matters

• An employer can effect a dismissal without using formal words such as "you are dismissed"; the Authority looks objectively at what the parties communicated and did.
• Contribution is not a substitute for an employer carrying out a proper disciplinary or performance process.
• A lost-wages claim needs evidence of reasonable mitigation efforts.
• Trial-period protection requires careful analysis of what was actually agreed and whether the employer in fact relied on the trial clause.

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.