Harry Sampson v Lyttelton Port Company Limited - [2026] NZERA 17

This is a case-note style summary of an ERA determination (preliminary issues only). It is not legal advice.

Why this determination matters

Many COVID-19 vaccination dismissal cases have turned on timing. This determination is a useful roadmap for: (1) identifying the "effective" termination date where there is annual leave and notice, and (2) working out whether earlier correspondence is the "raising" of a Personal Grievance (PG) that could time-bar a later claim.

Relevant facts (as recorded for the preliminary issues)

• The applicant was employed by Lyttelton Port Company Limited (LPC) under a collective agreement.
• LPC announced mandatory vaccination requirements following consultation in November 2021.
• After a preliminary termination decision, LPC offered (in summary) annual leave then notice, with withdrawal of termination if vaccinated within the notice period.
• The correspondence recorded employment termination on 18 February 2022 if vaccination did not occur.
• The applicant lodged a Statement of Problem in the Authority on 4 March 2025.

The issues and the legal tests

1. 90-day notice period: Was the grievance raised with the employer within 90 days of the action complained of (ERA s 114(1) and s 114(7))?
2. 3-year limit: Were proceedings commenced within 3 years of the date the grievance was raised (ERA s 114(6))?

What the ERA decided

1) When did the dismissal "take effect" for the 90-day clock?

The Authority treated the termination as effective on 18 February 2022. A key part of the reasoning was that the employer stated termination would be withdrawn if the employee became vaccinated within the notice period, meaning termination was not irrevocable until the end of that period.

2) Was the dismissal grievance raised in time?

The Authority found the 20 April 2022 correspondence raised the dismissal grievance within 90 days of the effective termination date.

3) Did earlier communications time-bar the claim?

LPC argued earlier communications in December 2021 / January 2022 amounted to raising the grievance, which would have been more than three years before the Authority proceeding commenced. The Authority rejected that position for unjustified dismissal in these circumstances. Because notice of termination could be withdrawn up to the termination date, any "unjustified dismissal" grievance raised earlier would be premature.

Outcome and next step ordered

• The Authority may continue to investigate the unjustified dismissal PG raised on 20 April 2022.
• The proceeding was commenced within the 3-year timeframe (Statement of Problem lodged 4 March 2025).
• The parties were directed to mediation under s 159 of the Act.
• Costs were reserved.

Practical takeaways

• Effective termination date is critical: Where there is a notice period and an option for the dismissal to be withdrawn, the 90-day clock may run from the end of the notice period (not the initial decision letter).
• Be careful what you write early: Some communications can amount to raising a PG (including unjustified disadvantage), but unjustified dismissal may be premature if employment can still continue.
• Track the 3-year stop: If a PG is raised, proceedings generally need to be commenced within 3 years, or the claim can be precluded.

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