Four Applicants v A Respondent [2026] NZERA 407

This Employment Relations Authority (ERA) determination concerns four salaried employees who were union members, had participated in strike action, and were involved in collective bargaining activity. They alleged that a senior manager called them into individual meetings and told them that their union involvement was harming their promotion prospects, job security, and standing with the employer. The ERA accepted the applicants' evidence, found that the manager was acting as the employer's representative, and held that the meetings amounted to both discrimination and duress in relation to union activity. The Authority also found that a short-lived decision to deny striking employees access to discretionary work-from-home arrangements was discriminatory. Each applicant was awarded $10,000 compensation, with no reduction for contribution. The full determination is embedded at the end of this page.

Background: collective bargaining and strike action

The four applicants worked in salaried roles at the respondent's site. Their union initiated bargaining for a collective agreement in November 2023, which would have been the first collective agreement covering salaried employees at that site. The applicants were all union members, had taken lawful strike action, and three were union delegates directly involved in bargaining.

In September 2024, a senior manager separately called the applicants into their office. The Authority accepted the applicants' evidence about what was said. The manager did not give evidence at the Authority investigation meeting. The accepted evidence was that the manager criticised the applicants' involvement in union activity and told each of them that their strike action or delegate role was negatively affecting career opportunities, promotion prospects, and job security, and was viewed negatively by the respondent.

The manager was still the employer's representative

The respondent argued the meetings were unauthorised, one-off discussions by the senior manager and did not amount to discrimination within the statutory definition. The Authority rejected that argument. The manager was employed by the respondent and held a position of authority over the applicants. The meetings occurred in the manager's office, on the respondent's site, in a workplace context, and concerned the applicants' involvement in current union activity.

The Authority held that describing the meetings as "man-to-man" or "off the record" did not change the statutory analysis. The definition of employer representative does not require express authorisation of the conduct. On an objective assessment, the senior manager had ostensible authority as the respondent's representative in dealings with the applicants.

Discrimination: union activity was a material ingredient

The Authority found that the applicants had each been involved in union activities within the statutory period. There was no evidence that the senior manager conducted comparable meetings with employees who were not on strike or were not union delegates. The discussions were directly about the applicants' union activity and conveyed a negative view of that activity.

The respondent argued that the applicants had not established a tangible detriment because the adverse events referred to by the manager, such as lack of promotion or redundancy, had not occurred and the applicants remained active union members. That submission failed. The Authority held that the negative effect of the one-on-one meetings was plainly tangible: the applicants' confidence that their employer would treat them fairly and reasonably had been undermined by the manager's adverse view of union activity.

The Authority accepted detailed evidence of the impact on the applicants. The meetings caused stress, reduced confidence, concern about future job security and promotion, embarrassment, anxiety, sleep disturbance, and in some cases active consideration of other employment. The Authority found their evidence sincere and genuine and held that they were clearly intimidated and deferential toward someone they understood to be in a position of authority.

Duress: indirect threats to job security and career prospects

The Authority also found that the statutory elements of duress were established. It accepted that the senior manager sought to influence the applicants to cease their union activity by indirectly threatening disadvantage in relation to job security and career prospects.

The significant feature was the power imbalance. The senior manager had access to information and workplace influence arising from their senior role and used that position to convey alleged disapproval of union activity by senior figures within the respondent. The fact that the applicants remained union members and continued their involvement did not prevent the duress claim being established.

The annual leave claim did not succeed

One applicant alleged that a request for annual leave was declined because leave was being kept available for employees who had not taken part in strike action. The Authority accepted that union activity was part of the broader context and that the respondent carried the burden of rebutting the statutory presumption.

However, the Authority found that there was an established and generally accepted practice of limiting annual leave during the relevant busy period because of workforce requirements. That wider context rebutted the presumption that union activity was a material ingredient in the leave refusal. This particular personal grievance was therefore not established.

Work from home: a discretionary policy is still a term or condition of employment

The respondent had a discretionary work-from-home policy. In the context of the strike action, it decided that employees who had taken strike action, including the applicants, could not work from home and instead had to work from the site. The arrangement was short-lived, was not publicly announced, and was withdrawn after the union objected.

The respondent argued that no actual work-from-home request was refused and the decision was quickly reversed before it was widely known, so no detriment had occurred. The Authority rejected that argument. The applicants valued the policy as a source of flexibility and the decision made them feel singled out because of their union activity.

The Authority held that, but for the strike action, the decision to withhold the work-from-home option would not have been made. Employment terms and conditions are to be construed broadly and can include policies. It is not lawful to exercise a discretionary policy on a prohibited ground of discrimination.

Remedies: $10,000 for each applicant

The Authority found that the circumstances were stressful and upsetting and that the effects remained felt. Each applicant gave compelling evidence of the negative impact of the personal grievances. The Authority awarded each applicant $10,000 compensation for humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i) of the Employment Relations Act 2000.

There was no contribution reduction. The Authority found that the applicants had engaged lawfully with their union and had not acted in a culpable or blameworthy way that contributed to the situation giving rise to their grievances.

Why this case matters

The determination is a significant reminder that protection for union activity applies to more than formal disciplinary decisions or overt dismissal threats. A senior manager's individual conversation can amount to unlawful discrimination or duress when it communicates that union activity will harm an employee's advancement, security, or standing at work.

It also confirms that an employee does not need to prove a threatened detriment actually happened. Damage to confidence in the employer's fairness, stress caused by a manager's threats, and a resulting loss of job satisfaction can be a tangible detriment for the purposes of the discrimination provisions.

Practical takeaways

• Union involvement is protected: participation in bargaining, lawful strike action, and delegate activity cannot be treated as a negative factor in promotion, job security, leave, flexibility, or other employment decisions.
• Managers speak for the employer: calling a meeting informal, personal, or off the record will not necessarily remove a manager's statutory status as an employer representative.
• Do not use career or job-security threats: indirect statements that union activity may harm promotion prospects or secure employment can amount to duress.
• Discretion is not unfettered: a work-from-home or other discretionary policy still cannot be exercised on a prohibited discriminatory ground.
• Actual dismissal is not required: undermining an employee's confidence in fair treatment or making them feel singled out can be a tangible detriment.
• Investigate concerns promptly and independently: when allegations of anti-union conduct arise, employers should address them in a way that is credible, timely, and clearly separated from bargaining disputes.
• Keep decisions evidence-based: a consistent operational reason may rebut a discrimination presumption, as occurred with the annual leave refusal in this case.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination, [2026] NZERA 407. This article is written to preserve the non-publication order in the determination.