Cameron Keen v Prestige Paving NZ Limited [2026] NZERA 344

This Employment Relations Authority (ERA) determination concerns Cameron Keen, a labourer employed by Prestige Paving NZ Limited. After a Christmas closedown, Prestige failed to bring Mr Keen back to work, failed to pay him when he was available for work, placed him on leave without pay without him requesting it, and then stopped communicating. Prestige did not appear at the Authority investigation. The ERA found that Mr Keen was unjustifiably disadvantaged and unjustifiably dismissed. Prestige was ordered to pay $12,000 compensation, $19,460.82 combined unpaid and lost wages, $1,556.86 holiday pay, and $3,000 costs. The full determination is embedded at the end of this page.

The short point

This is a useful abandonment-by-employer case. The employee did not resign. The employer simply stopped providing work, stopped paying wages, gave vague explanations, imposed leave without pay, and then stopped engaging. The Authority treated that as both unjustified disadvantage and unjustified dismissal.

The case is also useful because the employment agreement itself was defective. Although it referred to a roster and normal hours, it did not state the number of guaranteed hours, the days of work, or start and finish times. The Authority found the agreement contravened section 67C of the Employment Relations Act 2000.

Prestige did not attend the investigation meeting. That did not mean Mr Keen automatically won every point, but it meant the Authority had to decide the case on the available documents and Mr Keen's sworn oral and written evidence. With no proper explanation from Prestige, the Authority inferred that Mr Keen had been subjected to unjustified actions and omissions that caused him detriment.

Background

Mr Keen worked for Prestige as a labourer. He said that, at the beginning of the relationship in July 2024, he was paid cash at $20 per hour for full-time work between Monday and Friday. The work involved preparing driveways for tarmacadam paving. He would leave Christchurch on a Sunday, travel to Timaru, and then work his way back to Christchurch by the end of the week. His evidence was that he typically worked nine to twelve hour days and sometimes did not receive standard meal and tea breaks.

Mr Keen produced an individual employment agreement which he said Jason Devine provided to him on 5 August 2024. From that date, the agreement stated he would be paid the minimum wage rate of $23.15 per hour. The work location was described as various third-party client sites within the Canterbury region as reasonably directed by the employer.

Jason Emanuaelle Devine and Levi Jai Devine were Prestige's two directors and equal shareholders. They were believed to be living in Australia by the time of the Authority process. Mr Keen said he dealt exclusively with Jason Devine, who interviewed and appointed him, directed his day-to-day work, and dealt with remuneration queries.

The employment agreement problem

The employment agreement did not properly define Mr Keen's hours. Clause 9.1 referred to a schedule setting out normal hours of operation, but the schedule described the business as operating Monday to Sunday, 24 hours. Clause 9.2 said Mr Keen's hours and days of work would be set by the employer in advance in accordance with a roster, but left the number of required hours per week blank.

The Authority found that the agreement contravened section 67C of the Employment Relations Act 2000 because it did not specify the number of guaranteed hours, the days on which work was to be performed, or the start and finish times of work.

The closedown and failure to restart work

Mr Keen said he worked regular hours until 13 December 2024, when Prestige closed down and told workers that work would recommence on 6 January 2025. Jason Devine went to Australia. In early January, Mr Keen asked for updates about returning to work.

On 7 January 2025, Jason Devine said he had been in a car accident on 5 January while on the way to the airport to return to New Zealand. The next day, he said he had a back injury and it could be six to eight weeks before he was back at work. Mr Keen asked whether he and the other workers would be put off work for that period. Jason Devine did not answer that question.

Mr Keen later asked for financial help to tide him over. Jason Devine advanced him $250 and asked him to repay it as soon as possible. This was not wages. It was treated as a personal loan.

Mr Keen kept asking for work

On 16 January 2025, Mr Keen again contacted Jason Devine. He explained that he was waiting to get back to work and earn money, and said he had tried to obtain a Work and Income benefit but that it would not be available for another two weeks. He asked whether there was any work he could do so he could make money.

Jason Devine responded on 18 January with no firm assurance, saying only that hopefully it should not be too long before they were back at work. By 4 February, Mr Keen said he saw an advertisement for an Australian business involving Jason Devine that was seeking workers. On 15 February, Mr Keen messaged Jason Devine asking him to get hold of him urgently.

The evidence showed Mr Keen did not walk away from the job. He wanted to work. He asked for work. He asked what was happening. Prestige failed to provide any clear answer or lawful basis for not paying him.

Leave without pay imposed without a request

On 24 February 2025, Prestige sent confirmation that Mr Keen's leave without pay had been approved for 14 February to 13 March 2025. The message came through an unmanned email account and directed Mr Keen to contact Jason Devine's New Zealand based accountant with any enquiries.

Mr Keen had not requested leave without pay. On 1 March, he messaged Jason Devine asking why leave without pay had been imposed when he had not requested it. He also pointed out that he was still a full-time employee and had not been paid for Waitangi Day.

The Authority treated this as part of the employer conduct that disadvantaged Mr Keen and brought the employment relationship to an end. An employer cannot simply place an employee on unpaid leave because it has no work organised or because a director is overseas or injured.

The personal grievance

There was no evidence of further contact between 1 March and 17 March 2025. On 17 March, Mr Keen's advocate raised a personal grievance. The grievance letter said that the employment had ended on 14 February 2025 and that this was an unjustified dismissal, or at least an unjustifiable constructive dismissal. The advocate also requested wage and time records under section 130 of the Act.

Prestige did not meaningfully engage after that. It did not respond to a request for mediation and did not participate in the Authority investigation process. Prestige was no longer trading, but the Registrar of Companies had suspended steps to remove the company from the Companies Register because of an objection from Mr Keen's advocate.

Unjustified disadvantage

The Authority found that Mr Keen was unjustifiably disadvantaged. The disadvantage included not being paid for the period from 6 January 2025 to 14 February 2025, being inappropriately placed on leave without pay, and the lack of ongoing communication from Prestige.

The key point was that Mr Keen was available for work. Prestige did not provide work, did not provide a lawful explanation, and did not pay him. In the absence of any documentary evidence validating Jason Devine's decision to effectively abandon his responsibilities as a director of Prestige, the Authority inferred that Mr Keen had been subjected to unjustified employer conduct.

Unjustified dismissal

The Authority also found that Prestige unjustifiably dismissed Mr Keen. Again, the case did not involve a normal dismissal letter. The dismissal was found from the employer's conduct. Prestige stopped Mr Keen's remuneration, tried to place him on unpaid leave, failed to provide him with ongoing employment from 6 January 2025, and failed to communicate effectively to maintain the employment relationship.

Mr Keen's evidence was that he had not resigned and wanted to keep working. Because Jason Devine would not engage, Mr Keen assumed the employment had ended. The Authority accepted that the employer's inaction brought the employment relationship to an end.

Compensation

Mr Keen gave evidence that the dismissal damaged his confidence and caused distress and humiliation. The Authority accepted that he had been robbed of agency in how the employment ended. Mr Keen also provided evidence of unsuccessful efforts to find alternative employment.

The Authority assessed the distress as real but transitory. Considering comparable cases, it awarded $12,000 compensation under section 123(1)(c)(i) of the Employment Relations Act 2000.

Unpaid and lost wages

The Authority found that Mr Keen's lost remuneration was attributable to the personal grievance. Mr Keen relied on payslips showing that he averaged 44.93 hours per week at $23.15 per hour. For the period from 6 January 2025 to 14 February 2025, he claimed he was available for work for 40 days and would have been paid $5,939.14 on his previous average hours.

Mr Keen also claimed 13 weeks' lost wages after the employment ended. Using the same average-hours approach, that amounted to $13,521.68. The Authority awarded combined unpaid and lost wages of $19,460.82, plus holiday pay.

Penalties declined

Mr Keen asked the Authority to impose penalties for failures relating to wage and time records, wages when due, and accrued annual leave payments. The Authority declined to order penalties. It did so while making clear that it did not condone Prestige's actions and omissions.

The practical result is that Mr Keen recovered compensation, unpaid and lost wages, holiday pay, and costs, but no separate penalty award was made against Prestige.

No contribution reduction

The Authority considered contribution under section 124 of the Employment Relations Act 2000 and referred to the contribution principles summarised in Maddigan v Director General of Conservation. It found no factors that could lead to a conclusion that Mr Keen contributed to the way his employment was abruptly terminated. There was no reduction to remedies.

Costs

Because Prestige chose not to participate in the Authority investigation and Mr Keen succeeded in his personal grievance, the Authority awarded a costs contribution. The Authority fixed costs at $3,000 to reflect preparation, attendance at the investigation meeting, and preparation of submissions.

Why this case matters

This determination is a straightforward reminder that an employer cannot simply disappear from the employment relationship. If the employee is ready, willing, and available to work, the employer needs a lawful basis for not providing work and not paying wages. Vague messages, personal circumstances of a director, and uncertainty about the business do not answer the employer's statutory and contractual obligations.

The case also shows the risk of trying to characterise an absence from work as leave without pay when the employee has not requested it. Leave without pay is not a device for transferring the employer's business disruption to the employee. A unilateral unpaid leave arrangement may itself be an unjustified disadvantage and may help prove that the employer brought the employment relationship to an end.

Finally, the determination is useful for non-participating employers. Prestige's non-appearance did not prevent the Authority from proceeding. The Authority was satisfied Prestige had been served and knew about the investigation. The Authority then made findings and orders based on the available evidence.

Practical takeaways

• Stopping pay can be a dismissal risk: if an employer stops paying an available employee, it may be treated as ending the relationship.
• Leave without pay must not be imposed casually: unpaid leave generally needs a proper basis and should not be invented after the fact.
• Keep communicating: an employer that fails to respond to basic questions about work and pay creates obvious PG exposure.
• Do not rely on vague hours clauses: employment agreements must comply with section 67C and properly state agreed hours where applicable.
• A formal dismissal letter is not essential: the Authority can find dismissal from the employer's conduct.
• Availability for work matters: Mr Keen recovered wages for the period he was available but not paid.
• Non-attendance is dangerous: an employer that does not participate in the Authority process risks findings being made on the employee's uncontested evidence.
• Costs can still be awarded: Prestige was ordered to pay a $3,000 costs contribution despite no appearance.
• Contribution is fact-specific: there was no reduction because Mr Keen did not contribute to the abrupt termination of employment.
• Penalties are discretionary: even where minimum employment standards issues are raised, the Authority may still decline a separate penalty.

Read the full ERA determination (embedded)

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