Gemma Pedersen v Super Vape Store Limited [2026] NZERA 108
A detailed, plain-English summary of an Employment Relations Authority (ERA) determination about a probation-period dismissal based on KPIs, where the employee said she never received proper POS training. The full determination is embedded at the end of this page.
At a glance
- Citation: [2026] NZERA 108
- Parties: Gemma Pedersen v Super Vape Store Limited
- Authority member: Simon Greening
- Employment: retail assistant (14 October 2024 to 13 January 2025)
- Key employer allegation: KPI targets (basket size/value and customer sign-up) not met during probation, based on CCTV and performance reports
- Probation clause: six months probation; termination on one week's notice or pay in lieu
- Outcome: unjustified disadvantage (inadequate training) and unjustified dismissal (no fair process; probation misunderstanding) both upheld
- Orders: $2,000 compensation (training disadvantage) + $11,000 compensation (dismissal) + $2,917.48 lost wages (gross), payable within 28 days
- Contribution: none (employer did not properly raise performance concerns or give a chance to improve)
- Costs: reserved
What happened
Gemma Pedersen was hired by Super Vape Store Limited (SVSL) as a retail assistant from 14 October 2024. The Auckland store she was to work in did not open to the public until 18 November 2024.
She said SVSL promised full training on store systems and legal processes. Training occurred in two cafe sessions with the area manager before the store opened, and Ms Pedersen said this covered products and basic sales, but the point-of-sale (POS) system was not set up so she could not learn it properly in context.
SVSL said there were further training shifts and WhatsApp-based training (calls and video meetings) because the area manager was based in Australia. SVSL also recognised a need for additional training, messaging staff that a trainer would be sent for a week of full sales training when products arrived.
On 13 January 2025, without any prior performance meetings or warnings, SVSL emailed Ms Pedersen saying CCTV and KPI reports showed she had not met key performance indicators (basket size/value and customer sign-ups). A second email that day stated her probation was being terminated effective immediately.
Ms Pedersen said the termination came out of the blue and caused significant distress. She raised that the store had only been open for about two months and she still had not received the proper training SVSL had promised. She brought personal grievances for unjustified disadvantage and unjustified dismissal and sought compensation and lost wages.
Unjustified disadvantage: inadequate training
The Authority treated the disadvantage grievance as a practical, real-world question: was Ms Pedersen actually disadvantaged at work by SVSL's action or inaction, and was that action unjustified.
It accepted Ms Pedersen had to learn the POS system on a trial-and-error basis. That negatively impacted her ability to do the job confidently, caused stress, and mattered because SVSL then relied on KPI results to terminate her employment.
The Authority found SVSL did provide some training, but not the full training Ms Pedersen reasonably expected, especially on the POS system and legal processes. It found that failure caused an unjustified disadvantage.
Unjustified dismissal: KPI termination without process
The Authority then applied the s 103A test for justification: whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances.
SVSL relied on probation and KPI performance. However the employment agreement recorded a six-month probation period, and Ms O'Hare accepted she mistakenly understood it was only three months. The Authority treated that misunderstanding as part of why the decision was flawed.
More importantly, SVSL did not raise performance concerns with Ms Pedersen, did not give her an opportunity to improve, and did not put her on notice that she might be dismissed if performance did not improve.
Termination was communicated abruptly by WhatsApp and email, without the fair process requirements being followed. The Authority held the dismissal was unjustified.
Remedies and costs
- Compensation: the Authority awarded $2,000 for the disadvantage claim (inadequate training) and $11,000 for the dismissal claim, reflecting the harm caused by the sudden and process-free termination.
- Lost wages: Ms Pedersen was paid up to 19 January 2025 and started a new job on 14 February 2025. The Authority found she took reasonable steps to mitigate and ordered $2,917.48 (gross) for the gap period.
- Contribution: SVSL did not establish it had properly raised and managed performance concerns, so no reduction was made under s 124.
- Costs: reserved, with the usual memorandum timetable if not agreed.
Practical takeaways
- Probation is not a trial period defence. Employers still have to act fairly and reasonably and follow a fair process before dismissing.
- If you measure performance by KPIs, you need to ensure training and tools are in place before treating KPI results as a basis to terminate.
- A sudden termination by message, without warning, particulars, or a chance to respond, is high-risk and commonly unjustified under s 103A.
- If the employer says poor performance, it should normally raise concerns, give support, and provide a real chance to improve (especially for a new retail store opening).
Read the full ERA determination (embedded)
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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.
