Jimmy Nelson v The Digger Man Ltd [2025] NZERA 835 - Unjustified dismissal for absenteeism, 50% contribution reduction

What happened (the story in plain English)

Mr Nelson began working for The Digger Man Limited (TDM) on 4 September 2023. He later signed an individual employment agreement on 26 September 2023. His employment ended in early November 2023, after the employer said he repeatedly failed to turn up for work and was frequently late.

A key feature of the case was the employer's contemporaneous diary notes which recorded days absent, short hours, and discussions with Mr Nelson about attendance. Mr Nelson initially disputed being away for multiple days without contact, but later accepted there was a period of 2 to 3 days when he was taken into police custody and did not notify the employer.

What Mr Nelson claimed

• Unjustified dismissal: including an argument that the employer relied on a 90-day trial period.
• Unlawful wage deductions: alleging deductions from final pay breached the Wages Protection Act 1983.
• Rest and meal break failures: claiming he did not receive required breaks (and seeking reimbursement amounts).
• Failure to provide wage and time records: and a request for penalties (including a request that some penalties be paid to him).
• Additional notice pay: claiming 2.5 days notice in the sum of $531.25.

What the employer said

• No 90-day trial dismissal: the employer said dismissal was due to persistent absence without notice.
• Breaks were available: the employer said Mr Nelson was told to take lunch breaks.
• Deductions were for loans: the employer said the deductions were repayment of short-term advances/loans Mr Nelson requested (including petrol money).

The ERA's analysis

1) The 90-day trial argument went nowhere

Although Mr Nelson argued he was dismissed under a 90-day trial, the ERA noted the termination communications did not refer to a trial period. The evidence supported a dismissal for attendance issues, so the ERA did not treat the case as a trial-period dismissal.

2) A late attempt to shift the employer to another company was rejected

Immediately prior to the investigation meeting, it was suggested that another company (Bananalama Limited) was the employer. The ERA declined to substitute a different respondent at the last moment, noting the signed agreement, personal grievance, and proceedings all named TDM.

3) The core legal test: section 103A (the "fair and reasonable employer")

The ERA applied the statutory test of justification (Employment Relations Act 2000, section 103A). In practical terms, this means asking whether, at the time:

• the employer sufficiently investigated the concerns,
• raised the concerns with the employee,
• gave the employee a reasonable opportunity to respond, and
• genuinely considered the explanation before deciding.

4) The reason was real - but the process still failed

The ERA accepted the employer had a genuine concern and had recorded multiple absences and short days. The employer also raised the topic of attendance with Mr Nelson previously.

However, the ERA found the dismissal was still unjustified because Mr Nelson was not given a final opportunity to understand how serious the latest absences were, and a final opportunity to explain, before the final decision to dismiss was made.

5) Contribution: remedies reduced by 50%

The ERA considered Mr Nelson's own conduct significantly contributed to the situation. He had been spoken to about attendance, knew the issue was serious, and continued to be absent without notice. Remedies were reduced by 50% to reflect this.

Remedies and orders (with the numbers)

Why the lost wages figure looks small

Mr Nelson sought 1 week lost wages of $1,300 gross plus 8% holiday pay ($140), total $1,440. After applying the 50% contribution reduction, this becomes $720 gross, which is the amount ordered.

Notice pay was not added on top

Mr Nelson also claimed an additional 2.5 days notice ($531.25). The ERA did not award this. One practical reason is that the lost wages remedy already addresses wage loss for the immediate period after dismissal, and the ERA did not accept there was an entitlement to be paid for work not performed in the circumstances.

Other claims that failed (and why)

Unlawful deductions (Wages Protection Act)

Mr Nelson alleged the deductions from final pay were unauthorised. The ERA rejected this because:

• Mr Nelson accepted he repeatedly requested advances/loans (including petrol),
• the payslips and bank records recorded the advances and repayments clearly,
• text messages supported the arrangement, and
• the employment agreement contained provisions allowing deductions for monies owed.

Rest and meal break reimbursement

Mr Nelson sought reimbursement for 35 days of breaks (both paid rest breaks and unpaid lunch deductions). The ERA declined these claims, noting Mr Nelson's evidence was vague, was contradicted by the employer's evidence, and diary notes suggested he did (or could) take time off during the day.

Penalties and wage/time records

The employer provided payslips and diary notes during the ERA process (later than they should have). The ERA considered whether a penalty might be appropriate, but declined to award any penalty because it was not shown that the late production of records prevented or hindered Mr Nelson from pursuing his claims.