CANALES v THERMASHIELD LIMITED [2025] NZERA 522

This page summarises and embeds an Employment Relations Authority (ERA) determination. It is not legal advice.

Story in plain English

The Authority ordered remedies and addressed unjustified dismissal issues.

In summary, Mr Canales says a migraine stopped him from turning up to work on his first day and when he was able to look at his phone, he saw Thermashield had dismissed him by text message. After that, This determination resolves the issue of whether Mr Canales was employed by Thermashield, whether he worked on 27 March 2023 and should be paid for that day, and whether he was unjustifiably dismissed on 6 June 2023. Later, On 11 August Mr Canales sent Thermashield a letter raising a personal grievance for unjustified dismissal. The determination records that While I am not persuaded a specific pay rate was confirmed, The Authority found that Mr Canales left the 17 April meeting with an understanding that he would start at Thermashield on the same pay rate he was on with his (then) employer. The Authority notes that The Authority found the key terms that were agreed were the services to be provided (window installer role), a proposal for Mr Canales to start on his current pay rate and that the work would be part-time. Ultimately, He had two meetings, consisting of a meeting with Mr Nimmo at the beginning of March and an interview with Ms Sakey on 17 April 2023. In the end, For all these reasons, The Authority found Mr Canales was dismissed by Thermashield.

Key case markers

• This determination comes from the Wellington registry.
• The parties are CANALES (employee) and THERMASHIELD LIMITED (employer).
• Hearing date noted: 16 May 2025.
• Authority member: Natasha Szeto.

Key events described (as described by the Authority)

• Mr Canales says a migraine stopped him from turning up to work on his first day and when he was able to look at his phone, he saw Thermashield had dismissed him by text message.
• This determination resolves the issue of whether Mr Canales was employed by Thermashield, whether he worked on 27 March 2023 and should be paid for that day, and whether he was unjustifiably dismissed on 6 June 2023.
• After this initial meeting, Mr Nimmo and Mr Canales communicated by text to arrange for Mr Canales to come back to the factory on 27 March 2023.
• On 6 April 2023, Mr Canales emailed Mr Nimmo to confirm he had worked a day at Thermashield on 27 March and provide his hours.
• The 17 April meeting [15] On 11 April 2023, Ms Sakey texted Mr Canales asking him to come in to talk about the job.
• On 11 August Mr Canales sent Thermashield a letter raising a personal grievance for unjustified dismissal.
• While I am not persuaded a specific pay rate was confirmed, The Authority found that Mr Canales left the 17 April meeting with an understanding that he would start at Thermashield on the same pay rate he was on with his (then) employer.
• The Authority found the key terms that were agreed were the services to be provided (window installer role), a proposal for Mr Canales to start on his current pay rate and that the work would be part-time.
• He had two meetings, consisting of a meeting with Mr Nimmo at the beginning of March and an interview with Ms Sakey on 17 April 2023.
• For all these reasons, The Authority found Mr Canales was dismissed by Thermashield.
• For these reasons, The Authority concluded Thermashield did not fully and fairly investigate any allegations with Mr Canales before taking adverse action against him.
• Based on the above, The Authority found Mr Canales was unjustifiably dismissed.
• Mr Canales says the text messages he received from Mr Nimmo on 6 June 2023 were (quoted wording omitted) and his employment was terminated in a horrific way.

Decision markers (as described by the Authority)

• Analysis [40] Based on the evidence before the Authority, The Authority found Mr Canales was an employee of Thermashield, being a person intending to work.
• For these reasons, The Authority found Ms Sakey had authority to offer Mr Canales employment with Thermashield.
• While I am not persuaded a specific pay rate was confirmed, The Authority found that Mr Canales left the 17 April meeting with an understanding that he would start at Thermashield on the same pay rate he was on with his (then) employer.
• The Authority found the key terms that were agreed were the services to be provided (window installer role), a proposal for Mr Canales to start on his current pay rate and that the work would be part-time.
• Conclusion - Mr Canales was an employee of Thermashield [63] Based on the evidence before the Authority, The Authority concluded that Mr Canales met the definition of an employee under the Act as a person intending to work.
• Based on the evidence before the Authority, The Authority found Thermashield ended the employment relationship by the texts it sent to Mr Canales on 6 June, and in particular, the text that read: (quoted wording omitted).
• For all these reasons, The Authority found Mr Canales was dismissed by Thermashield.
• Based on the above, The Authority found Mr Canales was unjustifiably dismissed.
• In saying this, The Authority found the evidence does not substantiate Mr Canales' contention that he was so incapacitated by a migraine that he was unable to contact Thermashield before his scheduled start time of 7:00 am on 6 June.
• While I have found Thermashield's actions were not justified, for the reasons given above The Authority found Mr Canales' actions contributed to the situation giving rise to his personal grievance, such that it is necessary to reduce the remedies payable to him.

Orders and payments mentioned

• Lost wages / arrears: $1,844.22
• Lost wages / arrears: $8,000.00
• Costs: Costs reserved.

Note: figures above are extracted from the orders section (or the final orders wording). Check the PDF for full context and any gross/net directions.

Practical takeaways

• Constructive dismissal turns on whether the employer's conduct forced resignation in substance.
• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.

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