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GXQ v NMK [2025] NZERA 772 - Constructive dismissal, discrimination, flawed workplace investigation, and remedies

Unfair Dismissal Cases 36 Constructive Dismissal 6

In GXQ v NMK [2025] NZERA 772 (Auckland), the ERA found the applicant was unjustifiably constructively dismissed after the employer failed to maintain a safe workplace free from discrimination and psychological harm, including serious flaws in a workplace investigation and an unreasonable disciplinary approach. The ERA made a permanent non-publication order and awarded $25,274.31 special damages (legal fees), $80,903 gross reimbursement for lost wages, $55,618.47 gross for a short term incentive payment, and $40,000 gross compensation, payable within 21 days.

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Non-publication order: This determination contains a permanent order prohibiting publication of information likely to identify the parties. The ERA uses anonymised initials ("GXQ" and "NMK"). If you are discussing this case publicly, keep it anonymised.

This page summarises and displays the Employment Relations Authority (ERA) determination GXQ v NMK [2025] NZERA 772 (Auckland). The ERA found the applicant was unjustifiably constructively dismissed after a series of breaches by the employer, including failure to protect the employee from discrimination and an unsafe / flawed workplace investigation process that caused foreseeable psychological harm.

Direct link to the full ERA determination (PDF): https://determinations.era.govt.nz/assets/elawpdf/2025/2025-NZERA-772.pdf

Quick facts

  • Citation: [2025] NZERA 772
  • ERA registry: Auckland
  • Member: Marija Urlich
  • Investigation meeting: 8-19 May 2023, 23-25 May 2023, and 15 June 2023
  • Determination date: 28 November 2025
  • Parties: GXQ (Applicant) v NMK (Respondent)

What was being claimed

GXQ worked for NMK in a senior role for about 19 months and resigned with immediate effect. GXQ claimed:

  • Unjustified constructive dismissal (or alternatively unjustified disadvantage), arising from a course of conduct and breaches of duty.
  • Key allegations included failure to protect from discrimination due to national origin, an unsafe workplace investigation process, an unreasonable disciplinary approach, and other process failures (information, paid leave discretion, medical assessment, and consultation on role changes).

NMK denied the claims and said it acted as a fair and reasonable employer could have in the circumstances.

Key findings that mattered

1) Discrimination protection failed

The ERA accepted GXQ faced hostility expressed in terms of national origin, raised those concerns with a senior manager, and the response was inadequate given NMK's stated "zero tolerance" bullying/harassment stance. The discrimination-related disadvantage claim was established.

2) Workplace investigation was flawed and unsafe

The ERA found the workplace investigation process was significantly deficient (including lack of transparency about how complaints were received, poor process design, lack of consultation on terms of reference, disproportionate response, and inadequate support).

Critically, NMK did provide some support, but it was not sufficient to minimise the risk of foreseeable harm arising from the investigation and its circumstances. That claim was established.

3) Disciplinary approach escalated matters unreasonably

NMK initiated a disciplinary investigation (with potential summary dismissal) relating to GXQ attending and presenting at a conference during a period covered by a medical certificate. The ERA found it was not reasonable to start that discussion in a disciplinary context without first giving GXQ a chance to comment, particularly given approved leave and the context known to NMK.

Constructive dismissal: the turning point

The ERA found NMK failed to meet its contractual and statutory obligations, including good faith and providing relevant information and fair opportunities to comment, and (most importantly) failed to take reasonable steps to maintain a safe workplace free from discrimination and psychological harm.

The ERA held NMK's breaches of duty caused GXQ's resignation, resignation was reasonably foreseeable, and therefore GXQ was unjustifiably constructively dismissed.

Remedies and orders

Amounts ordered (payable within 21 days)

  • $25,274.31 special damages (legal fees connected to the investigation / disciplinary processes)
  • $80,903 (gross) reimbursement for lost wages (87 days between last day of employment and new employment)
  • $40,000 (gross) compensation for humiliation, loss of dignity, and injury to feelings
  • $55,618.47 (gross) for a short term incentive payment (benefit loss)
Total ordered (gross, excluding tax treatment): $25,274.31 + $80,903 + $40,000 + $55,618.47 = $201,795.78. The ERA ordered payment within 21 days of 28 November 2025.

Costs and other points

  • No reduction for contributory conduct: no deduction under section 124.
  • Recommendations declined: the ERA noted significant workplace culture changes had already been made since the resignation.
  • Costs reserved: if not agreed, GXQ may file a costs memorandum within 14 days, NMK may reply within 14 days after service.

Practical takeaways

For employers

  • Workplace investigations must be proportionate, procedurally fair, and actively manage psychological safety risks.
  • If discrimination-linked hostility is raised, "push on" is not a compliant response: treat it as a health, safety, and good faith issue.
  • Do not escalate to discipline prematurely where the relevant context and approvals are already known.

For employees

  • Keep a clear paper trail: emails, requests for information, and responses (or non-responses) matter.
  • Document health impacts and treatment (EAP, GP, specialist input) where workplace harm is alleged.
  • Mitigation evidence can materially affect lost wages calculations.

Read the full determination

This is a public document hosted on the ERA determinations database. If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Open [2025] NZERA 772 (PDF)

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