Clive Bryham v Electrix Limited (trading as Omexom New Zealand) [2026] NZERA 147

This is an interim reinstatement decision. The Employment Relations Authority (ERA) did not decide the full merits of the dismissal. It decided whether the employee should be temporarily put back into his role while the unjustified dismissal and disadvantage claims are investigated. The full determination is embedded at the end of this page.

What happened

Omexom alleged the applicant failed in his duties as manager when dealing with an "illegal connection" incident involving a direct report. The employer's case was that he did not follow the formal disciplinary process (including properly documenting and escalating the matter to his own manager), and that this exposed the business to reputational risk with Vector, a key client.

The applicant was suspended on full pay on 20 October 2025 while the employer investigated. After meetings and correspondence, Omexom formed a preliminary view that his failures amounted to serious misconduct and that summary dismissal was proposed. A termination letter dated 18 November 2025 summarily dismissed him without notice.

The law for interim reinstatement

Interim reinstatement is decided using a well-known three-step framework:

• Serious question to be tried: the claim must be more than frivolous or vexatious (this is a low threshold).
• Balance of convenience: the practical impact on each side if reinstatement is granted or refused.
• Overall justice: standing back and considering what is fair in the circumstances.

Serious question to be tried

The ERA did not decide whether the dismissal was ultimately justified. It assessed whether there was a reasonably arguable case of unjustified dismissal. A key feature in the reasoning was the employer's reliance on "potential harm" to the Vector relationship, contrasted with the employee handbook clause for instant dismissal which used the concept of "harm" to reputation or trust and confidence.

The Authority noted that the email from Vector was a request to look into the incident, and it did not itself establish that Vector suffered actual harm or loss. In opposing interim reinstatement, the employer did not file affidavit evidence from Vector to confirm that reinstatement (or the underlying incident) harmed the relationship. That absence of evidence mattered at the interim stage.

The ERA also considered the applicant's argument about disparate treatment: there was a question whether the employer had treated another employee differently when informally investigating a comparable issue. The Authority could not resolve the factual disputes at this early stage, but it considered there was at least a serious question to be tried.

Finally, the Authority treated as arguable the employer's adverse inference that the applicant avoided the proper process to save time and effort. The transcripts recorded the applicant saying he was not hiding anything and thought he was doing the right thing, which supported the need for a closer examination at the merits hearing.

Is permanent reinstatement reasonably arguable?

Reinstatement is the primary remedy in New Zealand wherever practicable. Omexom argued reinstatement was not practicable or reasonable because the role is senior, autonomous and client-facing, and the company said it could no longer trust the applicant.

The ERA noted that, aside from one unrelated disciplinary matter in 2016, the applicant had a long record of performance and promotion over 16 years. The Authority also considered it was not clear how often disciplinary events of this type would arise in the ordinary course of the role, and the applicant had said he understood where he went wrong and would follow the handbook process in future. On that basis, interim reinstatement to the role was treated as practicable.

Third party and workplace impact arguments

Omexom relied on evidence from a direct report who said the prospect of the applicant returning caused distress and fear of being targeted. The Authority treated past conduct as the best indicator of future conduct and noted there was no evidence of previous issues between them in around 10 years working together.

Omexom also claimed reinstatement would harm its reputation with Vector and disrupt team morale. Again, the Authority considered those claims were not established on the evidence filed for the interim application, including the absence of evidence from Vector and the lack of post-employment conduct concerns.

Balance of convenience and overall justice

The ERA accepted evidence about financial pressure: mortgage repayments, household bills, and the challenge of securing a new role in a difficult job market, particularly at age 55 with specialised skills. The Authority also emphasised that damages are often a poor substitute for the loss of a job, and cited recent authority warning that routinely declining reinstatement can "monetise the employment relationship".

Omexom suggested a "payroll only" reinstatement. The Authority preferred reinstatement to work, noting that allowing the applicant to work reduced financial risk associated with potentially repaying wages later (given the applicant's undertaking as to damages), and supported restoration of reputation.

The ERA concluded the balance of convenience and overall justice favoured interim reinstatement.

Orders made

• The interim reinstatement application succeeded.
• Omexom was ordered to interim reinstate the applicant to the role of field operations manager and roster him to work within 7 days of 10 March 2026.
• The order remains in place pending the merits determination (or further order).
• Costs on the interim application were reserved pending the outcome of the substantive claims.

Practical takeaways

• Interim reinstatement is about risk and fairness, not final guilt: the Authority is not deciding the merits, only whether there is a serious question to be tried and whether justice favours reinstatement while the case proceeds.
• If an employer relies on reputational harm, file evidence: where the theory is harm to a key client relationship, evidence from that client can matter at the interim stage.
• Policy wording matters: a mismatch between "potential harm" and a policy standard referring to "harm" can create an arguable substantive justification issue.
• Third party objections need a factual foundation: distress claims and morale assertions must be supported by evidence and context (including past conduct).
• Payroll-only reinstatement is not automatic: the Authority can order a return to actual work where that better fits the balance of convenience and overall justice.

Read the full ERA determination (embedded)

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