CULLY v THE WORK SHOP LIMITED (IN LIQUIDATION) [2025] NZERA 507

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

Story in plain English

A costs determination was made.

In summary, Following the conclusion of the Authority's investigation meeting, TWSL was liquidated on 4 February 2025. After that, He has been unjustifiably dismissed; [3] He seeks the sum of $3,047.62 for unpaid wages and compensation of $12,500. Later, Over the next few days when his salary remained unpaid, Mr Cully sent an email on 29 July 2024 to Ms Gollan (including his reporting manager, Andrew Hodgkinson, the Chief Technical Officer), asking to be paid in full and advised he was taking annual leave from 29 July 2024 to 1 August 2024. The determination records that Ms Gollan's email of 21 August 2024 was the first time that it was alleged that he abandoned his employment notwithstanding that leave had been approved and set out on his payslip. The Authority notes that The correct approach4 in constructive dismissal cases where breaches are alleged is to firstly conclude whether the resignation has been caused by a breach of duty on the part of the employer. Ultimately, Mr Cully has the burden of establishing that the resignation was a dismissal. In the end, In response, she emailed him on 21 August 2024 and stated, (quoted wording omitted) As Ms Gollan did not partake in proceedings, I was unable to ask her for reasons for that allegation.

Key case markers

• This determination comes from the Wellington registry.
• The parties are CULLY (employee) and THE WORK SHOP LIMITED (IN LIQUIDATION) (employer).
• Hearing date noted: 16 January 2025.
• Authority member: Davinnia Tan.

Key events described

• Following the conclusion of the Authority's investigation meeting, TWSL was liquidated on 4 February 2025.
• He has been unjustifiably dismissed; [3] He seeks the sum of $3,047.62 for unpaid wages and compensation of $12,500.
• Over the next few days when his salary remained unpaid, Mr Cully sent an email on 29 July 2024 to Ms Gollan (including his reporting manager, Andrew Hodgkinson, the Chief Technical Officer), asking to be paid in full and advised he was taking annual leave from 29 July 2024 to 1 August 2024.
• Ms Gollan's email of 21 August 2024 was the first time that it was alleged that he abandoned his employment notwithstanding that leave had been approved and set out on his payslip.
• The correct approach4 in constructive dismissal cases where breaches are alleged is to firstly conclude whether the resignation has been caused by a breach of duty on the part of the employer.
• Mr Cully has the burden of establishing that the resignation was a dismissal.
• In response, she emailed him on 21 August 2024 and stated, (quoted wording omitted) As Ms Gollan did not partake in proceedings, I was unable to ask her for reasons for that allegation.
• However he stated that the responses from Ms Gollan and the refusal to mediate their dispute had led him to believe he was no longer welcome and felt he had no choice but to resign by the end of his leave (without pay) period on 30 August 2024.
• The Authority was satisfied that Mr Cully resigned on 30 August 2024 because of the breaches set out above.
• Accordingly The Authority found that his claim for unjustified (constructive) dismissal is made out on these grounds.

Decision markers

• The Authority was satisfied that Mr Cully resigned on 30 August 2024 because of the breaches set out above.
• Accordingly The Authority found that his claim for unjustified (constructive) dismissal is made out on these grounds.

Orders and payments mentioned

• Other payments: $12,000.00

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.

Read the full ERA determination (embedded)

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