Brad Capper v CJS Construction Ltd [2023] NZERA 314 - Unjustified dismissal found, contribution reduction applied

What happened (overview)

The employment relationship lasted about a month. Callum Sheridan became dissatisfied with Mr Capper's performance and conduct, but did not begin a disciplinary process. Mr Capper was absent from work for a few days and, on 9 August 2022, Callum Sheridan phoned him.

The phone call with Callum Sheridan

A key question for the ERA was what message Callum Sheridan conveyed to Mr Capper during the 9 August 2022 phone call. Mr Capper said he was dismissed and told not to come back. Callum Sheridan said the call was about dissatisfaction and he suggested they consider going their separate ways.

Employer lessons

• Be explicit: If you are not dismissing someone, say so clearly (in writing if possible) and explain what you require next (return to work, medical certificate, meeting, etc).
• Good faith responsiveness: If an employee asserts they have been dismissed, do not leave that allegation unanswered. Silence can be interpreted against the employer.
• Use a process: If there are performance or conduct concerns, investigate and raise them, rather than drifting into an ambiguous "part ways" conversation.
• Keep employment paperwork current: Trial period and notice terms must be agreed and settled properly at the start. Do not rely on unsigned drafts.

Key findings (plain English)

• Dismissal occurred: The ERA found the employment ended by dismissal (termination at the initiative of CJS), not by resignation or abandonment.
• Dismissal unjustified: CJS accepted that if a dismissal occurred it could not be justified, and the ERA noted there was no proper process.
• Contribution: The ERA reduced remedies by 50% because Mr Capper cut off communication and did not allow the discussion to continue, contributing significantly to the situation.
• Lost wages declined: The ERA declined lost wages due to unsatisfactory mitigation evidence and other factors affecting capacity to work.
• Employment agreement / trial: The ERA noted a trial provision may not have become a term because the agreement may not have been entered into when employment started, and a penalty about the written agreement was not pursued.
• Set-off declined: A late "set off" claim for alleged workmanship costs was not determined (it was not properly pleaded and was raised too late).
• Costs: Either party could apply for costs within 14 days of the determination.

Orders and remedies