DUNG PHAM v HUYNH [2025] NZERA 75

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

Story in plain English

This decision deals with claims arising from an agreement to employ someone and the ending of that arrangement, including alleged unjustified disadvantage and dismissal issues.

In summary, Ms Huynh admitted she had tried to forcibly take Ms Pham's phone away, and said that she had assumed Ms Pham was also trying to record her and insist on her rights even after being told "no", just like the other staff she had dismissed before Christmas. After that, The second thing that impacted Ms Pham although she was not aware of this, is that Ms Huynh was in the process of dismissing 7 of her existing staff between 17 December and about 27 or 28 December 2023. Later, In particular, it is submitted that Ms Huynh's statement to Ms Dung Pham on 13 January 2024 that there was no work for her, would not be any work for her, was no accommodation for her, and to return to the South Island was in fact a dismissal. The determination records that In the alternative, it is submitted that Ms Huynh's actions on 15 January where she attempted to forcibly take Ms Dung Pham's phone off her, engaged in a scuffle, and did not attempt to assist Ms Dung Pham when seeing she was frightened and hurt, amount to a constructive dismissal. The Authority notes that In light of what occurred the following day, The Authority found that there was never a concluded meeting of minds on this point. Ultimately, The Authority found that Ms Dung Pham was in fact dismissed on 13 January 2024. In the end, The Authority found that Ms Dung Pham was unjustifiably dismissed.

Key case markers

• This determination comes from the Wellington registry.
• The parties are DUNG PHAM (employee) and HUYNH (employer).
• Hearing date noted: .
• Authority member: .

Key events described

• Ms Huynh admitted she had tried to forcibly take Ms Pham's phone away, and said that she had assumed Ms Pham was also trying to record her and insist on her rights even after being told "no", just like the other staff she had dismissed before Christmas.
• The second thing that impacted Ms Pham although she was not aware of this, is that Ms Huynh was in the process of dismissing 7 of her existing staff between 17 December and about 27 or 28 December 2023.
• In particular, it is submitted that Ms Huynh's statement to Ms Dung Pham on 13 January 2024 that there was no work for her, would not be any work for her, was no accommodation for her, and to return to the South Island was in fact a dismissal.
• In the alternative, it is submitted that Ms Huynh's actions on 15 January where she attempted to forcibly take Ms Dung Pham's phone off her, engaged in a scuffle, and did not attempt to assist Ms Dung Pham when seeing she was frightened and hurt, amount to a constructive dismissal.
• In light of what occurred the following day, The Authority found that there was never a concluded meeting of minds on this point.
• The Authority found that Ms Dung Pham was in fact dismissed on 13 January 2024.
• The Authority found that Ms Dung Pham was unjustifiably dismissed.
• In her written submissions following the investigation meeting, Ms Huynh states that Ms Dung Pham abandoned her employment by failing to turn up for work on 15 March 2024 as instructed.
• My view is that the events of 15 January 2024 cannot realistically be separated from Ms Dung Pham's unjustified dismissal claim.
• I note that in her statement of problem, Ms Dung Pham claimed a compensatory sum of $20,000, but in submissions filed after the investigation meeting, she increased this to $30,000.

Decision markers

• The Authority found that Ms Dung Pham was in fact dismissed on 13 January 2024.
• The Authority found that Ms Dung Pham was unjustifiably dismissed.

Orders and payments mentioned

• Compensation: $20,000
• Lost wages / arrears: $14,236.80
• 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.
• Unjustified disadvantage claims require both unjustified conduct and actual disadvantage.
• 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.