Fire and Emergency New Zealand v Kinzett [2026] NZEmpC 119 - ERA dismissal finding overturned

Fire and Emergency New Zealand successfully challenged the Authority determination which had found Russell Kinzett's summary dismissal unjustified. The Employment Court treated the case as a serious-misconduct challenge and disagreed with important parts of the Authority's reasoning, including the significance attributed to FENZ having kept Mr Kinzett at work while the investigation and disciplinary process continued.

What the Authority had decided

Mr Kinzett was a long-serving firefighter. An external investigation followed cross-complaints involving him and two other firefighters. The Authority accepted that aspects of Mr Kinzett's conduct breached FENZ policies, but concluded that summary dismissal was not a response open to a fair and reasonable employer in all the circumstances.

One feature the Authority relied on was that FENZ allowed Mr Kinzett to remain in the workplace for a lengthy period after the investigation. The Authority regarded that as difficult to reconcile with a contention that trust and confidence had been destroyed.

The Employment Court's approach

The Employment Court disagreed with treating non-suspension as strong evidence that trust and confidence had not been lost. Suspension can itself be highly prejudicial and can compromise an investigation or disciplinary process.

FENZ had not simply done nothing. Mr Kinzett was moved to another station for a period and was later returned to his station on a different shift from the complainants. The Court regarded those steps as measured, non-punitive responses to the practical risks while the complaints were being addressed.

The Court therefore considered that the Authority had placed undue weight on the fact Mr Kinzett was not suspended. It applied the orthodox serious-misconduct approach: the question is whether the conduct was sufficiently serious to deeply impair or destroy the trust and confidence essential to the employment relationship and whether dismissal was justified under the statutory fair-and-reasonable-employer test.

What changed from the ERA result

This was not merely an interlocutory or costs judgment. The Court changed the substantive outcome. The Authority's unjustified-dismissal finding and the remedies flowing from it did not survive the challenge.

The case is particularly useful on a recurring point in disciplinary litigation: an employer's decision not to suspend does not, by itself, amount to a concession that the alleged conduct is too minor to justify dismissal. A fair employer may deliberately choose a less prejudicial interim measure.

Appeal and stay update

In Fire and Emergency New Zealand v Kinzett [2026] NZEmpC 182, the Court addressed arrangements pending the appeal process. Mr Kinzett was to remain on garden leave at his normal rate of pay and not attend the workplace. The stay was to continue until the outcome of the Court of Appeal process or further order, and determination of costs was also deferred. The Court considered the balance of convenience finely weighted and adopted that compromise while preserving the status quo.

Why this case matters

The decision is a useful caution against turning interim risk-management decisions into a proxy for the ultimate seriousness of misconduct. Suspension and dismissal answer different questions. An employer can reasonably decide that suspension is unnecessary or undesirable while still later concluding, after a fair process, that proven conduct justifies dismissal.

Find the Employment Court judgment

Open Employment Court decisions

Source: Employment Court decisions [2026] NZEmpC 119 and [2026] NZEmpC 182, and the underlying ERA determination.