Edmundo Marcelo v Golden Bulls Limited [2025] NZERA 814

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination about a chef's suspension and dismissal following serious food safety issues and a failed council inspection. The full determination is embedded at the end of this page.

Background and context

In January 2023, Edmundo Marcelo was employed as a chef by Golden Bulls Limited (GBL). His accredited employer work visa (AEWV) required that he worked specifically for GBL as a chef on a minimum pay rate.

Mr Marcelo says that he started in the Henderson restaurant (owned by GBL), but soon after commencing employment he was moved to the Takapuna restaurant (owned by Richhold Ltd). Throughout his employment he claims that he was subjected to bullying behaviour by Jong Mok (Albert) Yoon, was a "scapegoat" for systemic issues in the restaurant and additionally was not paid the wage rate, hours, breaks and leave entitlements owed to him. He submits that this pattern of conduct both individually and cumulatively caused him unjustified disadvantage. He further says that on 24 January 2024 he was unjustifiably suspended and then dismissed.

As (then) general manager of GBL, Mr Yoon says he received complaints from staff at both restaurants about Mr Marcelo's working practices and behaviour. Despite multiple attempts to talk to him about it, nothing improved and maintaining his employment was not an option. Mr Yoon denies all of the behaviour and work practices alleged by Mr Marcelo against him and claims that the facts as presented by Mr Marcelo are predominantly fabricated. The Authority's investigation

The role was tied to an Accredited Employer Work Visa (AEWV), requiring work as a chef for the accredited employer at or above the stated minimum pay rate.

Mr Marcelo was offered employment with GBL (trading as Gangnam Style Korean BBQ) in Henderson as a chef offering him $28 per hour for a minimum of 40 hours per week. This met his AEWV visa conditions requiring him to work for GBL as a chef at or above $28 gross per hour.

Mr Marcelo began working as a chef in the Henderson restaurant on 19 January 2023. Shortly after starting, he was given the various titles of head chef and head chef of Filipino chefs but no documentation was provided to support this change. In February 2023 he was moved from the Henderson restaurant to the Takapuna restaurant (also trading as Gangnam Style Korean BBQ but owned by Richhold Ltd).

On 11 January 2024 an Auckland City Council inspector undertook a food inspection in the restaurant. Following that inspection, the restaurant received a "D" grading from Auckland Council. Mr Marcelo was the chef present in the restaurant during the inspection.

On 14 January 2024, Mr Marcelo was notified of his suspension, resignation and last day of work through the group chat -" [Mr Marcelo] you are suspended from next week. As you resigning end of Jan, your last day of wrk is this Sunday".

On 24 January 2024 Mr Marcelo received a letter terminating his employment. The reason for his termination was: "...you have engaged in negligence. More specifically it is alleged that you have failed to complete critical cleaning duties or report food safety issues such as insects per your employment obligations and duties. This allegation came to the Business's attention when the Business failed a health inspection which caused a shutdown of operations." Analysis Unjustified disadvantage claims

Identification of the respondent parties was discussed during the case management conference on 6 May 2025. Mr Yoon is the sole director of Richhold Ltd and in the relevant period worked as general manager for GBL. During Mr Marcelo's employment with GBL, he predominantly worked for Richhold Ltd in Takapuna though remained on the GBL payroll as an employee. Accordingly, Richhold Ltd was joined under s 103B of the Act as a controlling third party to the personal grievance claims.

As of 29 May 2025, Richhold Ltd was placed in liquidation. In the absence of the liquidator's authority to proceed, Richhold Ltd was removed as a respondent in this determination.

What the Authority had to decide

• Unjustified disadvantage: alleged incorrect hourly rate / overtime / statutory holiday entitlements, and alleged bullying.
• Unjustified dismissal: whether the suspension and termination met the s 103A test (substance and process).
• Remedies: compensation, reimbursement of lost wages, and any outstanding entitlements; plus contribution and costs.

Pay and overtime issues (unjustified disadvantage allegations)

The Authority compared the signed employment agreement with a later addendum that purported to change how overtime and penalty rates would work.

In August 2022, Mr Marcelo and Mr Yoon both signed an employment agreement offering Mr Marcelo permanent employment conditional upon a valid visa and entitlement to work in New Zealand. The agreement provided for remuneration on an hourly rate basis at $28 gross per hour with "overtime authorised by the employer" paid at the standard hourly rate. This is consistent with the terms and conditions of his AEWV visa requirements.

There are three crucial clauses relating to remuneration in that addendum: OVERTIME RATE All the time worked beyond an employee's ordinary time of work, Monday to Friday must be paid for at the rate of 1.5. ORDINARY HOURS OF WORK The ordinary hours will be 40 hours per week for New Zealand worked between 11am to 10.30pm, Monday to Sunday (Business Normal hours of operation). PENALTY RATES Overtime worked on Saturday, Sunday and public holidays must be paid for at a rate of 1.5 per hour.

Mr Marcelo relies on this addendum to claim unpaid overtime hours. He interprets the addendum to read that all overtime and weekend work would be paid at T1.5 the hourly rate and this is the basis for his claim of $18,468.21 plus interest and holiday pay.

Payslips were provided and show that Mr Marcelo was paid a consistent $28 per hour for 40 hours each week during his employment.

Ms Cho had responsibility for payroll administration. Mr Marcelo's time and days of work were accurately recorded, including breaks and were presented as total hours including breaks taken. Ms Cho gave evidence that she recorded his hours based on a standard 45 hours per week "making adjustments as needed allowing for fluctuations (plus or minus) each week" because Mr Marcelo agreed to this.

Given Mr Marcelo's role there was no issue per se with a flat rate payment arrangement with "plus and minus" recorded except that there was no record he agreed to this and it was based on 45 hours per week, not 40 hours per week. In practice this reduced his hourly rate to $25 per hour.

There is a risk when undocumented arrangements occur based on trust between the parties. Here, insufficient evidence was provided to show that Mr Marcelo agreed to hours and remuneration at the different rate and therefore I must apply the agreements signed by the parties. The addendum was signed by both parties and is therefore considered a variation to the employment agreement. Fundamentally, it now falls on the Authority to determine the most likely intent of the parties in that addendum and contractual interpretation of the relevant clauses in the employment agreement.

Following on from Mr Marcelo's total hours worked calculation and calculating any overtime entitlements as specified in the addendum is: Hours Total ($) Number of contracted hours to be worked a. 2,040.00 during employment Total recorded hours worked during b. 1,846.50 employment (less breaks) c. Total hours/amount owing at T1.0 (193.50) $5,418.00 Hours worked outside the Monday to Friday d. 60.75 $2,551.50 hours during employment payable at T1.5 Hours worked on a Saturday or Sunday e. above 40 contracted hours per week payable 54.00 $2,268.00 at T1.5

Taking the deficit of 193.50 hours paid but not worked and adding the hours each week Mr Marcelo was entitled to be paid overtime according to the addendum, means that Mr Marcelo was overpaid $598.50. This amount is not recoverable as GBL paid a flat rate regardless of hours worked, thereby impliedly accepting if Mr Marcelo worked less than the required contracted hours.

I find that the payment on the basis of a flat rate was unjustifiable and in breach of Mr Marcelo's contractual terms. No unjustified disadvantage claim was established however as there was no disadvantage created for Mr Marcelo. Payment of statutory and other entitlements

There was no indication that GBL failed to pay statutory and other leave entitlements. GBL rostered Mr Marcelo off on most public holidays as it was entitled to do. His breaks were (for the most part) recorded and his final payslip verified that holiday pay was paid as his final pay. This claim is unsuccessful. Transfer between sites

Bottom line on pay: the Authority found the flat-rate approach was unjustifiable and inconsistent with the contractual terms, but it did not find the employee was disadvantaged overall on the evidence, including because the total hours and overtime calculation did not produce a net underpayment finding.

Suspension, transfer, and bullying allegations

Transfer between sites: the contract allowed work at another reasonable location and the evidence did not support an unjustified disadvantage claim on that point.

Mr Marcelo's employment agreement states his work location as Henderson and provides that "you will be required to work at this location and at any other reasonable location as directed from time to time by the employer". Based on his home address, there was little difference in distance from home to each location.

In his witness statement Mr Marcelo says that he was "asked" to work at the Takapuna restaurant and the work chat between the parties shows discussion and consideration about the move by Mr Marcelo. There is no evidential basis for this claim of unjustified disadvantage made by Mr Marcelo. Unjustified suspension

Suspension: the Authority found the employer announced suspension via group chat without first seeking the employee's comments, contrary to contractual and good faith obligations.

On 14 January 2024, via the work group chat, Mr Marcelo was advised that he was suspended. Even though there was a threat to public health as Mr Yoon put it, there are still good faith obligations to provide information about the decision to suspend and an opportunity to comment before making the decision.3

The employment agreement requires that "the employer will seek your comments prior to a decision being made about suspension". This did not occur. The decision to suspend did not meet the employer's good faith requirements in the Act or as agreed with Mr Marcelo. Mr Marcelo's pay ceased effective immediately. Bullying

Bullying: after examining the work chat and hearing multiple witnesses, the Authority did not accept the bullying allegations were proven.

There was no evidence provided by Mr Marcelo that Mr Yoon engaged in bullying behaviour towards him. This was also explored in depth with several witnesses.

Mr Marcelo says that blaming Mr Marcelo for events outside his control and communication in an aggressive and inappropriate manner constituted bullying. It is evident from the work chat that Mr Yoon used exclamation marks and swore a couple of times but these were one-off frustrations in response to specific events, not randomly at Mr Marcelo. They did not constitute bullying as defined by Worksafe New Zealand and the employee handbook.

Both past and current employee witnesses denied bullying behaviour by Mr Yoon. Their evidence was the opposite and they spoke highly of him. They variously reflected that he held everyone accountable for meeting expectations, they never saw him mistreat his staff, he tried to accommodate staff needs and was a patient and considerate manager.

Mr Marcelo's unjustified disadvantage grievances are unsuccessful. Was Mr Marcelo unjustifiably dismissed from his employment?

Dismissal: what the Authority decided

The Authority treated the employment as ending by dismissal (a summary termination letter dated 24 January 2024), not a resignation.

I consider that Mr Marcelo was dismissed from his employment on 24 January 2024, as confirmed in the letter titled "summary termination", and proceed to determine his grievance claim on that basis.

Substantive justification: the evidence about kitchen hygiene, pests, food storage, and the council inspection outcome was extensive, including photographs and the council improvement notice.

After the Auckland Council inspection on 11 January 2024, Gangnam Style Korean BBQ in Takapuna was named as one of "Auckland's filthiest restaurants" in various media articles in the following weeks. It was issued with an improvement notice and a 'D' grade on 15 January 2024.

The Authority was provided with over 40 pages of photographic evidence of the kitchen equipment and environment. The photographs showed unrefrigerated meat, ingrained grime, mouldy food and pest activity. This aligned with the food safety breaches identified by the Auckland Council food safety officer. Mr Yoon also provided customer feedback to support the food safety and quality concerns at that time.

It is evident from the group work chat that: a. Poor hygiene and roach activity was an issue known at least to Mr Yoon, Mr Marcelo, the manager and another employee as early as May 2023. b. On multiple occasions between September 2023 and 11 January 2024, Mr Yoon instructed chefs on food storage requirements and pest control and commented that the restaurant was "unbelievably dirty". His frustration with Mr Marcelo's lack of knowledge about the menu, kitchen practices, ordering and cleanliness was evident. c. Mr Marcelo himself posted in the group chat on 5 January 2024 "live cockroach on spicy squid" with a photo.

The evidence refutes these claims. The internal Gangnam Style Korean Buffet Manual comprehensively lists product, presentation requirements, recipes and individual position responsibilities. The internal Food Control Plan Procedures (dated 14 February 2022) provides guidelines on hygiene, cross-contamination risks, food temperature requirements and food storage. Pest control records were provided showing regular pest control measures taken.

The position description of head chef also has multiple references to these duties within the chef duties including "overall responsibility for kitchen management and operation", record and report food safety control plan" and "comply with nutrition and sanitation regulations and safety standards".

Food safety is a fundamental in any commercial kitchen. It is reasonable to expect that a chef with experience in a commercial kitchen already understands food safety requirements and does not require food safety training. Multiple witnesses verified that he received food safety training, despite Mr Marcelo denying this.

Mr Marcelo was provided with clear direction that as chef he was responsible for the kitchen operations including stock, food safety, hygiene and each dish exiting the kitchen. Taking a step back and looking objectively at the duties of a head chef in a commercial kitchen, it is realistic that those responsibilities rest with that position.

The food inspection incident had the most impact on the business. Mr Marcelo was the chef present when the food safety officer arrived. While responsibility for the failed inspection cannot be attributed solely to Mr Marcelo, there were items (such as the FCP) listed in the council improvement notice that Mr Marcelo should have, and did not, provide to the officer. Additionally, Mr Marcelo's report to Mr Yoon that there was no problem with the food and only some maintenance improvements were suggested was incorrect and misleading. He then posted the grade on the front restaurant window. Ms Kim and Mr Yoon both said they were unaware of the grading until advised by another employee.

Taking an objective view, the seriousness of a D grading, the foreseeable impact on the business, Mr Marcelo's significant role in the failure to ensure kitchen operations met council food safety standards and his misleading comments about the visit to Mr Yoon were significant and fitted within the definition of serious misconduct in the restaurant's handbook. I accept that GBL's decision to dismiss Mr Marcelo was substantively justified.

Overall, there was ample evidence to show serious deficiencies in Mr Marcelo's ability to fulfil his duties as chef and that his actions on 11 January 2024 seriously jeopardised the safety, financial sustainability and reputation of the restaurant. Did GBL follow a fair process in making the decision to terminate Mr Marcelo's employment?

Procedural fairness: the Authority identified process defects (including acting quickly and not giving a real opportunity to respond before termination). It treated the defects as not 'minor' because the unfairness mattered, and the lack of a proper improvement process affected how the employee was treated.

The decision to dismiss Mr Marcelo was effectively made on 14 January 2024 when it was posted in the group chat. It gave him a weeks' notice despite the later letter saying that his termination was effective immediately from 24 January 2024. Mr Yoon provided evidence that on 17 January 2024 he sought external HR advice in the disciplinary process.

There was very little done to investigate before taking action against Mr Marcelo. The council improvement notice was issued on 15 January 2024 and set out the council concerns and consequences very clearly. Mr Marcelo was responsible for the kitchen and was present during the council inspection. These deficiencies sat very firmly within his responsibilities and it is accepted that the concerns could be put promptly to Mr Marcelo following the inspection. However, a. The council inspection took place on 11 January 2023 and the disciplinary meeting took place on the same day. Mr Marcelo was not given time to respond to the results of the inspection, his feedback (other than it was not his fault), his accountability and to discuss whether further training, clarity of role, warning or other alternatives were practicable considerations to dismissal; b. He was not the only person aware of the issues in the restaurant that led to the inspection failure; c. He was entitled to know why he was suspended before it was announced in the group chat; and d. He was entitled to know that termination of his employment was a possibility before providing his response.

It is not the Authority's role to determine whether Mr Yoon made the right decision or not, only that the employer's actions and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred. The Authority must not determine a dismissal or an action to be unjustifiable solely because of defects in the process followed by the employer if the defects were minor and did not result in the employee being treated unfairly.6

However, Mr Yoon reacted hastily and it did result in Mr Marcelo being treated unfairly. As is apparent from the witness evidence and work chat, Mr Marcelo was underperforming for several months prior to this incident. That was not sufficient reason to dispense with fair process. The failure in process meant Mr Marcelo did not have his shortcomings in expectations clearly identified, and then did not have a real opportunity to improve before the ultimate sanction of dismissal was imposed.

In light of the findings above, the decision to dismiss Mr Marcelo was substantively justified but procedurally flawed by its failure to consider the procedural fairness factors in s 103A(3) of the Act. As the lack of process overlaps with any substantive justification, the dismissal was unjustified. Remedies

Remedies, contribution, and the final order

Lost wages: the Authority ordered 13 weeks' lost wages of $14,560, noting the immediate financial impact of the flawed process and that the employee found new work after more than three months.

Mr Marcelo claims $14,560 based on 13 weeks lost wages at the rate set out in his employment agreement. He claims he made every effort to mitigate his loss and provided evidence of job applications to support this. He secured work on 24 April 2024 at a slightly lower hourly rate.

The Act provides for reimbursement to an employee of lost wages in an amount that is the lesser of the sum equal to lost remuneration or to three months ordinary time remuneration.7 It took over three months for Mr Marcelo to find employment and he is 7 Employment Relations Act 2000, s 128(2). entitled to lost wages of up to three months. GBL is ordered to pay Mr Marcelo 13 weeks in lost wages under the Act amounting to $14,560.

If GBL had followed a fair and documented performance improvement process when Mr Marcelo's shortcomings were first identified or became of serious concern, then the issues would have been resolved, or alternatively his employment would not likely have ended any sooner than the period for which lost wages is awarded. Compensation for hurt and humiliation

Compensation: the Authority awarded $6,000 for hurt and humiliation, reflecting the unfair way the suspension and end of employment was communicated, but also that the risk of dismissal should not have been unexpected given the role and council findings.

Mr Marcelo sought compensation under the Act of $20,000 to $25,000 for his successful claims. There is no evidence in support of a claim at that level looking at other awards in similar circumstances.

Mr Marcelo said that he could not pay rent, moved in with his niece and had enduring stress and anxiety trusting his new employer. I accept that the way he was told about his suspension and end of employment was procedurally unfair to Mr Marcelo. However, the fact of his dismissal was not reasonably unexpected based on the council improvement notice and given his position and responsibilities. That must also be reflected in the remedies awarded. Considering similar cases, an appropriate remedy in this case is an award to Mr Marcelo of $6,000 as compensation for hurt and humiliation. Should the remedy be reduced for blameworthy conduct by Mr Marcelo?

Contribution: the Authority reduced total remedies by one third because the employee's shortcomings and lack of accountability contributed significantly to the situation giving rise to the grievance.

The evidence presented strongly contradicts this submission. Throughout investigation questioning, Mr Marcelo did not take responsibility or accountability for any of the restaurant issues or the inspection result. In the witness evidence by other employees and Mr Yoon and in the work chats, both group and individual, there was a 8 Employment Relations Act 2000, s 124. consistent theme of "widespread staff dissatisfaction" and frustration at Mr Marcelo's failure to manage the kitchen effectively and take responsibility for his "own shortcomings". I put significant weight on that group chat evidence as written evidence reflecting the employees' feelings at that specific time. Mr Marcelo's conduct impacted other employee's work stress levels and their enjoyment. One employee witness described their own significant stress due to his repeated negligence and irresponsible behaviour and the enduring nature of that impact for them.

It was unusual that Mr Marcelo claimed to have chef experience yet expressed so little understanding of basic restaurant practices and requirements. It is for the employer to conduct due diligence prior to employment, yet Mr Marcelo also had an obligation to take accountability as Head Chef, undertake his duties and to speak up if he did not have the skills to undertake that role. His actions significantly contributed to the situation that gave rise to the dismissal grievance and on that basis reduction of his remedies is warranted.

Considering his total remedies of $20,560 (being lost wages of $14,560 and compensation of $6,000 under ss 128 and 123(1)(c)(i) of the Act respectively), a reduction of one third is warranted from his remedies awarded for unjustified dismissal. Orders

Final order and time to pay: the Authority ordered $13,707 to be paid within 28 working days. Costs were reserved with a memorandum timetable.

For the above reasons I order Golden Bulls Limited to pay Mr Marcelo $13,707 within 28 working days of the date of this determination being the reduced remedy amount under ss 123(1)(c)(i), 123(1)(b) and 128 of the Act. Liability of Second Respondent

Costs are reserved. The parties are encouraged to resolve any issue of costs between themselves.

If the parties are unable to resolve costs, and an Authority determination on costs is needed, Mr Marcelo may lodge, and then should serve, a memorandum on costs within 28 days of the date of this determination. From the date of service of that memorandum, GBL and Mr Yoon then have 14 days to lodge any reply memorandum. On request by either party, an extension of time for the parties to continue to negotiate costs between themselves may be granted.

Money and timeframes

• $14,560 lost wages (13 weeks) and $6,000 compensation were assessed before contribution was applied.
• Remedies were reduced by one third for contribution (s 124), producing a reduced remedy total of $13,707.
• $13,707 was ordered to be paid within 28 working days of 18 December 2025.
• Costs were reserved (memorandum on costs within 28 days; reply within 14 days after service).

Second respondent liability (personal liability if non-payment)

Personal liability: the Authority treated Mr Yoon as a 'person involved in a breach of employment standards' (for the standards aspects) and granted leave so that if the company did not pay money due, he could be personally liable for that non-payment.

I must then clarify the potential liability of Mr Yoon. Mr Marcelo sought to join Mr Yoon as a person involved in a breach of employment standards as defined in s 142W of the Act, and that he be granted leave under s 142Y of the Act to recover personally from Mr Yoon any money payable to him that GBL or Richhold Ltd are unable to pay.

The first requirement within s 142W of the Act for a person involved in a breach is that the breach must be a breach of employment standards. Employment standards are defined in s 5 of the Act. They include the minimum entitlements under the Holidays Act 2003, the provision of the Wages Protection Act 1983, and the entitlements to rest and meal breaks in the Act.

Secondly, where the employer is an entity such as a company, a person involved in a breach must be an officer of the entity.1 In the case of a company, an officer is usually a director of the company. Mr Yoon is a director of Richhold Ltd (in liquidation) but, at the relevant time, was not a director of GBL. Mr Yoon's regular involvement with the restaurant management, stock ordering, human resources and operational matters provide strong evidence that while he was not a director he fitted within the definition of an officer as defined by s 142W(3)(e) of the Act, thus satisfying the requirement of that section.2

I must be satisfied that Mr Yoon has aided, abetted, counselled, or procured, the breach/es, or has been in any way, directly or indirectly, knowingly concerned in or party to the breach. I find that Mr Yoon was the primary company representative in the breaches. By virtue of his position in the company and the work he performed in the business on a day-to-day basis, he had direct knowledge of Mr Marcelo's terms and conditions, hours of work, duties and visa requirements. He had the requisite level of knowledge and control to be considered a person involved in a breach.

I am satisfied that he met the requirements of ss 142W and 142Y of the Act as a person involved in the breaches of employment standards by GBL and is appropriately included as a Second Respondent.

If GBL does not pay the wage arrears owed to Mr Marcelo, Mr Yoon will be personally liable. Costs

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