Courtney Jansen v BDS Chartered Accountants Limited [2026] NZERA 230

This case sits at the intersection of a 90 day trial clause and constructive dismissal. The employer wanted to end employment under the trial, but offered resignation as a "compassionate" alternative. The Authority held that giving an employee a choice between resignation and dismissal can itself amount to constructive dismissal, and that BDS could not rely on the trial provision because it did not comply with the written notice requirement. The full determination is embedded at the end of this page.

Background

Ms Jansen was employed by BDS Chartered Accountants Limited as an administrator for about seven weeks. Peter Taylor was the sole director. Isa Taylor was an assistant manager. BDS also engaged an external HR consultant, Sharon Searle.

Ms Jansen alleged multiple problems during the short employment: inadequate training and support, an unsafe or hostile workplace, racial discrimination at a Christmas event, and a lack of good faith. She said she was constructively dismissed on 19 December 2024.

The 90 day trial clause and the 19 December 2024 phone call

The parties agreed the employment agreement contained a valid 90 day trial provision. BDS said employment ended by dismissal under the trial.

On 19 December 2024 (10:51am), Ms Searle phoned Ms Jansen and told her BDS was ending her employment under the trial period. During the call, Ms Searle also offered Ms Jansen the alternative of resigning instead, and asked her to confirm by the end of the day whether she would resign or wanted a termination letter. Ms Jansen left the office at about 11:30am and emailed Ms Searle at 5:30pm resigning. Ms Searle acknowledged receipt later that evening.

Resignation vs dismissal: what the Authority found

The Authority found Ms Jansen resigned on 19 December 2024. It also found that during the phone call she was presented with a choice: resign or be dismissed. The termination letter was prepared but not sent because Ms Jansen resigned.

Constructive dismissal and trial period compliance

The Authority then considered whether Ms Jansen's resignation amounted to a constructive dismissal. It held that presenting an employee with the option of resigning or being dismissed can constitute constructive dismissal (the "choice" resignation principle).

The Authority also analysed the employer's attempt to rely on the 90 day trial provision. BDS accepted (and the Authority found) the agreement required one week's written notice, and that written notice was not provided. The Authority treated this as a failure to comply with the statutory requirements for relying on the trial provision, meaning the trial clause did not bar a personal grievance for unjustified dismissal. On that basis, the Authority held Ms Jansen was unjustifiably constructively dismissed.

Other personal grievance allegations

Training and support

Ms Jansen alleged inadequate training (including messy onboarding and interrupted training) and inadequate support with workload after another administrator resigned. BDS pointed to multiple trainers, recorded training sessions, and steps taken to address workload (including a daily priority email and a meeting with management). The Authority found BDS provided adequate training and support in the circumstances, taking into account the short employment duration and the resources of a small business. The unjustified disadvantage claims did not succeed.

Healthy and safe work environment

Ms Jansen alleged a hostile environment and bullying-type behaviour (comments about appearance, pressure about work volume, and passive aggressive comments). The Authority found BDS was not made aware of these specific concerns during employment, and there were not circumstances that should reasonably have alerted it to a health and safety risk. This claim did not succeed.

Discrimination

Ms Jansen alleged a racially insensitive comment at a Christmas event. The Authority treated the comment as inappropriate, but found it did not establish discrimination by BDS (BDS was not aware of it at the time and did not dismiss or disadvantage Ms Jansen by reason of a prohibited ground). This claim did not succeed.

Good faith and penalty

The Authority found there was no legal or factual basis to find a breach of s 4 (good faith), and declined to issue any penalty. This claim did not succeed.

Remedies

Compensation

The Authority assessed compensation for emotional harm arising from the unjustified constructive dismissal, not as a punishment. It took into account the short employment, the way the ending was handled, and the context that BDS offered resignation rather than dismissal. The Authority fixed compensation at $7,000.

Practical takeaways

• Resign-or-be-dismissed is risky: offering resignation as an alternative to dismissal can still amount to constructive dismissal.
• Trial clauses are technical: failure to comply with notice requirements can defeat reliance on s 67B(2) and allow an unjustified dismissal claim.
• Procedural defects can drive outcome but limit remedies: where unjustifiability is procedural, reimbursement/lost wage remedies may be reduced or refused if dismissal was inevitable.
• Record issues early: health and safety and bullying claims are harder to establish if concerns are not raised while employment is on foot.

Read the full ERA determination (embedded)

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