Brent Colyer v New Zealand Aluminium Smelters Limited [2026] NZERA 444

This Employment Relations Authority (ERA) determination concerns a long-serving electrician, Brent Colyer, and a disciplinary process run by New Zealand Aluminium Smelters Limited after an isolation breach involving a gantry crane and a related 35-tonne crane. Mr Colyer resigned after receiving a written warning and claimed unjustified disadvantage and constructive dismissal. The Authority rejected constructive dismissal, but found the disciplinary process was unjustified, breached good faith, and caused an unjustified disadvantage to Mr Colyer's employment. NZAS was ordered to pay $18,000 compensation. The full determination is embedded at the end of this page.

What happened?

Mr Colyer had been employed by NZAS as an electrician since October 2005. On 28 August 2024 he was called to inspect a gantry crane that had stopped operating. He set up a site around the crane, undertook critical control checks, accessed the crane, and discovered that the problem was a circuit breaker that had been turned off.

Another employee, referred to in the determination as NAO, inspected the gantry crane with him. NAO pointed out a sign stating that the nearby 35-tonne crane needed to be isolated before accessing the gantry crane. Mr Colyer had missed that sign and had accessed the gantry crane without first isolating the 35-tonne crane.

Mr Colyer then isolated the 35-tonne crane. There was also a dispute about whether he needed to wear PPE when isolating and deisolating that crane. Initially, this PPE issue formed part of NZAS's concern. Later, during the disciplinary meeting, NZAS spoke to another electrical subject matter expert who said PPE would not be required in those circumstances. NZAS then set the PPE allegation aside.

The investigation became disciplinary without being made clear

The isolation issue triggered an internal investigation. Tony Dixon, Superintendent - Maintenance Support, was assigned to investigate what happened. He inspected the site, spoke to several employees, and spoke to Mr Colyer on 6 September 2024.

The 6 September meeting was described at the outset as an informal meeting and an opportunity for Mr Dixon to hear Mr Colyer's account. The Authority found that Mr Colyer had no idea that this meeting could lead to disciplinary action. That mattered because the investigation into the isolation incident effectively became an investigation into Mr Colyer's conduct.

The Authority found NZAS had merged the investigation into the incident with an investigation into Mr Colyer's conduct. Mr Dixon said his investigation was not for the purpose of deciding whether disciplinary action should be commenced, yet that is what he went on to decide, including forming a view about sanction.

The draft report problem

Mr Dixon produced a draft investigation report. The draft report found that Mr Colyer had not isolated the 35-tonne crane before accessing the gantry crane and had not worn appropriate PPE when he later isolated it. It also included an outcomes section which recorded that Mr Colyer was to receive a verbal or written warning and that a performance improvement plan would be implemented.

When Mr Colyer attended the meeting on 2 October 2024, his support person asked where the investigation report was. The meeting was stopped while a copy was obtained. NZAS then gave Mr Colyer and his support person the wrong version of the report: the draft report that still contained the outcomes section.

The Authority accepted that NZAS had not actually predetermined the disciplinary outcome. However, it found the problem was that, on reading the draft report, Mr Colyer believed the outcome had already been decided. On the Authority's reading of the draft report, that was a fair conclusion. The draft report caused Mr Colyer considerable distress and clearly affected his view of how fairly he was being treated.

The colleague issue was not properly investigated or explained

The disciplinary invite letter did not just focus on isolation and PPE. It also alleged that Mr Colyer had been extremely focused on highlighting unfounded perceived deficiencies in a colleague's work. In other words, the process began to include a concern that Mr Colyer had gone out of his way to cast a colleague in a bad light.

The Authority treated this as a key flaw. The concern about Mr Colyer's working relationship with the colleague became a central part of the disciplinary concerns, but it was not evident from the investigation report. The report identified two concerns: failure to isolate the 35-tonne crane and the PPE issue. The colleague-related concern appeared to have come from HR after reading what had been recorded about NAO's comments.

The Authority found this allegation had not been properly investigated and was not clearly articulated in the 30 September 2024 meeting letter. More should have been done, including obtaining proper written statements and investigating the PPE requirements earlier, especially because Mr Colyer disputed NAO's view.

The disciplinary meeting letter was unclear

The 30 September 2024 letter was headed as an invitation to an "investigatory meeting". In substance, it was a disciplinary meeting. The letter said the investigation report was enclosed, but it was not included with the letter Mr Colyer received. It also did not properly set out the concern about Mr Colyer's working relationship with the colleague.

The Authority found the disciplinary process was flawed. The investigation had not been properly separated from the disciplinary process, the allegations were not properly framed, important information was missing, and the wrong report was provided during the meeting.

The PPE allegation was dropped

During the 3 October 2024 meeting, NZAS spoke to another employee who was also an electrical subject matter expert. That employee said PPE would not have been required when isolating the 35-tonne crane. As a result, Mr Dixon set aside the PPE allegation.

That left the isolation issue. Mr Dixon told Mr Colyer his preliminary view was that a written warning was appropriate. After a further break, Mr Colyer indicated he would accept a written warning. A written warning was then produced and, after further discussions, some changes were agreed.

Constructive dismissal failed

Mr Colyer resigned on 21 October 2024. He argued that the resignation was a constructive dismissal because it was caused by NZAS's breaches of duty. The Authority accepted that NZAS's breaches were serious enough to warrant resignation. However, that was not enough to establish constructive dismissal.

The Authority was not satisfied it was reasonably foreseeable that Mr Colyer would resign in response to the unjustified disciplinary process. Mr Colyer had accepted that a formal warning was an appropriate outcome and had negotiated the terms of that warning. After those terms were agreed, nothing further was raised for 11 days.

The Authority was also not satisfied that Mr Colyer resigned just because of the flawed disciplinary process. His resignation letter referred to the process and to feeling that he had been made an example of, but it also referred to a wider loss of trust and respect, his electrical knowledge not being respected, his work environment becoming hostile and toxic, and work being unenjoyable for the previous two years. That wider group of concerns meant the resignation was not treated as a constructive dismissal.

Unjustified disadvantage succeeded

Although constructive dismissal failed, the unjustified disadvantage claim succeeded. The Authority found NZAS acted unjustifiably and breached good faith in its disciplinary process. The written warning made Mr Colyer's employment less secure. That was a disadvantage to his employment.

The case is a useful reminder that an employee can fail on constructive dismissal but still succeed on unjustified disadvantage. A flawed disciplinary process and unjustified warning may be actionable even if the employee later resigns and cannot prove that the resignation should legally be treated as a dismissal.

Compensation and no contribution reduction

Mr Colyer sought compensation and lost remuneration. The Authority declined lost remuneration because the successful claim was unjustified disadvantage, not unjustified dismissal, and he had not lost remuneration as a result of the unjustified warning.

The Authority accepted that Mr Colyer suffered humiliation, loss of dignity and injury to feelings. He was humiliated and devastated, felt physically sick during the process, lost trust in NZAS, felt insecure and disillusioned, became withdrawn, suffered sleep and appetite disruption, and was stressed. Compensation was assessed at $18,000.

There was no contribution reduction. The Authority found Mr Colyer had not acted in a culpable or blameworthy way that contributed to the grievance.

Why this case matters

Colyer v New Zealand Aluminium Smelters Limited is a strong example of how a disciplinary warning can still be unjustified even when there is a real workplace incident. The Authority did not ignore the fact that Mr Colyer missed the isolation sign. The problem was how NZAS handled the process that followed.

The determination is particularly useful where an employer begins with an incident review or safety investigation and then moves into employee misconduct. If that transition is not made clear, the employee may be denied a proper chance to understand the allegations, prepare, and respond.

The case also illustrates the danger of allowing side issues to grow into disciplinary allegations. NZAS's concern about Mr Colyer supposedly putting a spotlight on a colleague's work became central, but it had not been investigated or put with sufficient clarity. That undermined the fairness of the process.

Practical takeaways

• Separate incident investigation from discipline: if an incident review turns into potential misconduct, say so clearly.
• Tell the employee the stakes: an employee should know if a meeting may lead to disciplinary action.
• Provide the correct report in advance: missing or wrong investigation documents can fatally undermine fairness.
• Do not leave outcome comments in draft reports: an outcomes section can reasonably suggest predetermination even if the employer did not actually decide the result early.
• Investigate all material allegations: if an allegation about attitude toward a colleague becomes central, it needs evidence and proper articulation.
• Record witness information properly: statements or notes are important where disputed facts inform discipline.
• Check technical issues before alleging misconduct: NZAS dropped the PPE allegation only after later consulting another subject matter expert.
• Constructive dismissal has extra hurdles: serious breaches may not be enough if resignation is not foreseeable or is caused by wider issues.
• A warning can still be a disadvantage: an unjustified warning may make employment less secure and justify compensation.
• Contribution must be proved: a real workplace incident does not automatically mean the employee's compensation should be reduced.

Read the full ERA determination (embedded)

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