DA SILVA v DSJ JOINERY LIMITED [2025] NZERA 444

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 Da Silva says he was unjustifiably dismissed in the 16 October meeting because DSJ did not have a good reason for firing him and it did not follow any process. After that, Whether Mr Da Silva was unjustifiably dismissed from his employment in that his dismissal was not substantively justifiable or procedurally fair, or whether he resigned from his employment. b. Later, He then sent a further (and final) email: Why are you saying I resigned when you fired me!? The determination records that I never resigned I need my job [23] Mr Milne did not respond to this email. The Authority notes that The issue is whether Mr Da Silva resigned or was dismissed, and where responsibility for his termination properly lies.2 [28] The parties had wholly different recollections of what happened in the meeting. Ultimately, If The Authority found that Mr Da Silva was dismissed then I need to determine whether his dismissal was unjustifiable by applying the test of justification in s 103A of the Act. In the end, Based on the evidence before the Authority, The Authority was satisfied that going into the 16 October meeting Mr Milne had no intention of disciplining or dismissing Mr Da Silva and ending the employment relationship and he did not do so in the meeting.

Key case markers

• This determination comes from the Auckland registry.
• The parties are DA SILVA (employee) and DSJ JOINERY LIMITED (employer).
• Hearing date noted: 23 April 2025.
• Authority member: Natasha Szeto.

Key events described (as described by the Authority)

• On 16 October 2023 Mr Milne called Mr Da Silva into a meeting and Mr Da Silva walked out believing he had been fired.
• Mr Da Silva says he was unjustifiably dismissed in the 16 October meeting because DSJ did not have a good reason for firing him and it did not follow any process.
• Whether Mr Da Silva was unjustifiably dismissed from his employment in that his dismissal was not substantively justifiable or procedurally fair, or whether he resigned from his employment. b.
• The incident [14] On Friday 13 October 2023 Mr Da Silva was working in the factory cutting MDF planks and Mr Milne was doing paperwork in the office.
• He then sent a further (and final) email: Why are you saying I resigned when you fired me!?
• I never resigned I need my job [23] Mr Milne did not respond to this email.
• The issue is whether Mr Da Silva resigned or was dismissed, and where responsibility for his termination properly lies.2 [28] The parties had wholly different recollections of what happened in the meeting.
• If The Authority found that Mr Da Silva was dismissed then I need to determine whether his dismissal was unjustifiable by applying the test of justification in s 103A of the Act.
• Based on the evidence before the Authority, The Authority was satisfied that going into the 16 October meeting Mr Milne had no intention of disciplining or dismissing Mr Da Silva and ending the employment relationship and he did not do so in the meeting.
• Against this accepted background, The Authority found it implausible and improbable that Mr Milne would escalate a health and safety meeting - which was not even a disciplinary meeting - to a dismissal in the course of minutes.
• the Authority therefore concluded that Mr Milne did not dismiss Mr Da Silva in the meeting.
• Conclusion [38] Although there was not an actual dismissal and the circumstances of this case do not fit into any of the conventional categories of constructive dismissal,6 The Authority concluded the employment relationship ended as a result of DSJ's conduct.
• Consequently, DSJ must (quoted wording omitted).7 The Authority concluded DSJ dismissed Mr Da Silva from his employment.
• Based on the evidence before the Authority, The Authority concluded that Mr Da Silva's actions in the 16 October meeting and subsequent to the meeting contributed to the dismissal.

Decision markers (as described by the Authority)

• If The Authority found that Mr Da Silva was dismissed then [the Authority] needed to determine whether his dismissal was unjustifiable by applying the test of justification in s 103A of the Act.
• Based on the evidence before the Authority, The Authority was satisfied that going into the 16 October meeting Mr Milne had no intention of disciplining or dismissing Mr Da Silva and ending the employment relationship and he did not do so in the meeting.
• Against this accepted background, The Authority found it implausible and improbable that Mr Milne would escalate a health and safety meeting - which was not even a disciplinary meeting - to a dismissal in the course of minutes.
• Conclusion [38] Although there was not an actual dismissal and the circumstances of this case do not fit into any of the conventional categories of constructive dismissal,6 The Authority concluded the employment relationship ended as a result of DSJ's conduct.
• Consequently, DSJ must (quoted wording omitted).7 The Authority concluded DSJ dismissed Mr Da Silva from his employment.
• The Authority was satisfied that Mr Da Silva's actual loss was therefore closer to three days, rather than the full week he claims.
• Based on the evidence before the Authority, The Authority concluded that Mr Da Silva's actions in the 16 October meeting and subsequent to the meeting contributed to the dismissal.

Orders and payments mentioned

• Compensation: $13,500
• 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.

Read the full ERA determination (embedded)

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