Deborah Coley v Bupa Care Services NZ Limited [2026] NZERA 530

Deborah Coley's employment agreement guaranteed her at least 32 hours of work each week. When she refused Bupa Care Services NZ Limited's proposed variation to average those hours over a six-week roster, Bupa presented redundancy as the only alternative. The Employment Relations Authority found the redundancy proposal was not genuine and that Bupa's approach to bargaining breached good faith and unjustifiably disadvantaged Ms Coley. A later disciplinary investigation and written warning also caused unjustified disadvantage. Bupa was ordered to pay $15,000 compensation and $4,000 in penalties.

The guaranteed-hours agreement

Ms Coley initially worked for Bupa on a casual basis. On 14 July 2024 she signed a permanent employment agreement stating that she was guaranteed the minimum hours recorded in her offer letter. The offer letter expressly guaranteed at least 32 hours per week.

Bupa was then changing its rostering system to six- and eight-week rotating rosters. It said Ms Coley's offer letter had been issued in error and should have guaranteed an average of 32 hours per week over the roster cycle rather than 32 hours in every week. The Authority rejected that explanation. The evidence showed that permanent caregivers had ordinarily been guaranteed 32 weekly hours and that Bupa's change process had not finished when it offered Ms Coley permanent employment on those terms.

Bupa did not provide Ms Coley with 32 hours of work in every week. The Authority found that this breached clause 6.1 of her employment agreement. The parties had resolved the associated wage-arrears claim before determination, but the contractual breach remained relevant to the grievance and penalty claims.

Variation or redundancy

In August 2024, Bupa asked Ms Coley to sign a variation providing for an average of 32 hours over each six-week roster period. She refused. At an October meeting she was told that if she insisted on 32 hours each week there would be a discussion about whether she wanted to remain and that Bupa would undertake a people-service change process.

On 22 November 2024 Bupa formally proposed making her position redundant because it said it could not fulfil the existing guaranteed-hours term. Its subsequent correspondence stated that if she did not accept the proposed role, it saw no alternative but to place her on notice of redundancy. Ms Coley ultimately accepted the variation because she believed otherwise she would lose her employment.

The Authority found the proposed redundancy was not genuine. Other caregivers continued to have agreements guaranteeing 32 hours per week, but Bupa proposed making only Ms Coley's position redundant. Its proposal followed directly from her refusal to surrender a contractual right. Rather than honouring the agreement or bargaining openly, Bupa presented dismissal as the alternative.

The later disciplinary investigation

In September 2025 Bupa began investigating a complaint from a resident's family member and three reports from registered nurses concerning Ms Coley's interactions with residents. The allegations included speaking loudly or forcefully, being impatient, shouting, and using disrespectful language.

Bupa later found all allegations substantiated and characterised the conduct as abuse and neglect. However, the abuse and neglect policy was not identified or provided to Ms Coley before the investigation meeting. She received it only after Bupa had made its findings. The Authority held that the policy was relevant information which Bupa had a statutory duty to disclose at the outset. Without it, Ms Coley did not know the policy breaches being investigated and could not respond fairly before findings were made.

This failure caused a separate unjustified disadvantage. The Authority did not, however, award additional compensation for that aspect because Ms Coley had not provided sufficient evidence separating its personal impact from the effects of the other unjustifiable actions.

The warning was unjustified

Bupa issued Ms Coley a written warning on 4 December 2025. The Authority found Bupa did not genuinely consider her explanation or address her substantive response to each allegation.

Important credibility issues were left unexplored. Some reports concerned events weeks earlier, there was no explanation for the delay in reporting them, and Bupa did not address why its staff had not followed policies requiring immediate reporting. One matter had already been addressed at the time through a general reminder to staff to speak respectfully to residents. The outcome letter did not explain why Ms Coley's denials and alternative explanations were rejected.

The investigation was also conducted by the manager who had personally heard and dealt with one of the alleged incidents. The Authority found the warning was unjustified because the failure to consider Ms Coley's answers fairly and reasonably fundamentally undermined Bupa's findings.

Discrimination claims were not established

Ms Coley also alleged discrimination based on family status and national origin. She said employees with childcare responsibilities received roster flexibility and workers holding visas were guaranteed 32 weekly hours. The Authority found insufficient evidence of family-status discrimination. It accepted visa workers received guaranteed hours to meet visa conditions, but found Ms Coley's New Zealand citizenship or national origin was not a material ingredient in Bupa's treatment of her. Those claims failed.

Compensation, penalties and contribution

Ms Coley described significant stress, disturbed sleep, deteriorating mental health and fear that she would lose her job shortly before Christmas. The Authority awarded $7,000 compensation for the unfair bargaining and redundancy threat.

She also described humiliation and distress from allegations she regarded as false and from Bupa's failure to listen to her explanation. The Authority awarded a further $8,000 for the unjustified warning. None of Ms Coley's conduct caused or contributed to the grievances, so there was no reduction.

Bupa's use of a redundancy proposal to force a variation was a serious good-faith breach attracting a $3,000 penalty. Half was payable to Ms Coley and half to the Crown. Its breach of the guaranteed-hours term attracted a further $1,000 penalty payable to the Crown.

Why this case matters

Coley v Bupa Care Services NZ is a strong example of unjustified disadvantage without dismissal. An employee does not need to wait until a redundancy threat is carried out before challenging an employer's use of that threat to secure worse contractual terms.

The case also demonstrates that disclosure must identify the actual policies and standards being investigated before findings are reached. Supplying the decisive policy after the outcome does not provide a meaningful opportunity to respond.

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