Jimmy Nelson v The Digger Man Limited [2025] NZERA 835

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination about a short employment relationship that ended after repeated absences. The Authority held the employer had real attendance concerns but the dismissal was still unjustified on process (no final chance to respond). Remedies were reduced for employee contribution. The full determination is embedded at the end of this page.

What happened

Mr Nelson started working for The Digger Man Limited (TDM), a construction and landscaping business, on 4 September 2023. He initially worked informally, and later signed an employment agreement on 26 September 2023. The work included general construction tasks and operating diggers and earthmoving equipment.

The relationship quickly became contentious around attendance. TDM (through its director, Mr Callum Reid) said Mr Nelson was frequently late and frequently absent without notice. Mr Nelson said he was a good worker and not often late, and that when he missed work either he or his partner had notified Mr Reid. During questioning at the investigation meeting, Mr Nelson accepted there was at least one period of 2 to 3 days when he did not attend work because he had been taken into police custody, and he did not notify TDM.

A termination text message (undated in the copy before the Authority) referred to persistent lateness and absence without communication, and said borrowed money would be deducted from wages. On 1 November 2023, an email was sent to Mr Nelson's partner terminating his employment and referring to "the required notice of 1 week", with a last day of 8 November 2023. In practice, Mr Nelson did no further work after 1 November and returned work property the following day. The Authority treated 1 November 2023 as the effective dismissal date.

Preliminary points raised and rejected

Mr Nelson argued he had been dismissed under a 90 day trial period and that the trial was invalid because he had started working earlier. The Authority rejected that framing because neither the termination text nor the termination email referred to a trial period, and the evidence supported dismissal for attendance concerns instead.

Immediately before the investigation meeting, it was also suggested that a different company name should be substituted as the employer. The Authority refused to substitute a different respondent at the hearing. The signed agreement, the PG, and the proceedings all identified TDM, and TDM acknowledged it was the employer.

Unjustified dismissal: genuine attendance concerns, but unfair process

The Authority applied the s 103A test: whether TDM's actions were what a fair and reasonable employer could have done in all the circumstances at the time. The Authority accepted TDM had investigated the key concern (attendance) using contemporaneous diary notes and witness evidence. The diary notes showed significant absenteeism and short-hours days in October 2023, including multiple full days absent without explanation.

The Authority also accepted that attendance concerns had been raised with Mr Nelson previously (including a recorded discussion on 5 October and the earlier termination text that referred to attendance problems). However, the final dismissal followed a period where Mr Nelson was absent without notice for at least two days (and said to be three). The Authority held that, on balance, the dismissal was unjustified because Mr Nelson was not given a final opportunity to understand how seriously TDM viewed the latest absences and to explain them before the final decision to terminate was made.

Contribution: remedies reduced by 50%

Although the dismissal was unjustified on process, the Authority found Mr Nelson's own conduct materially contributed to the situation. He had been spoken to about absenteeism, was warned by the earlier text that dismissal was being considered, and still continued to be absent without notice. The Authority reduced remedies by 50% to reflect contribution.

Remedies and orders

Mr Nelson sought one week's lost wages ($1,300 gross) plus 8% holiday pay ($140 gross). The Authority awarded that claim but applied the 50% contribution reduction, resulting in: $650 gross wages plus $70 gross holiday pay, totalling $720 gross.

Mr Nelson also sought $20,000 compensation for hurt and humiliation. The Authority treated the failure as primarily procedural (no final chance to respond) and assessed a baseline figure around $10,000. After the 50% contribution reduction, compensation was set at $5,000.

Other claims: breaks, wage deductions, penalties

• Rest and meal breaks: claims for reimbursement ($145.95 for paid rest breaks and $437.50 for meal break deductions) were not made out. The Authority found the evidence was vague and contradicted by more specific evidence and diary notes suggesting time off during the day.
• Wage deductions / Wages Protection Act: the deduction complaint failed. The evidence showed Mr Nelson repeatedly requested advances/loans (including petrol), which were deducted later, and the agreement allowed such deductions.
• Wage and time records / penalties: the Authority noted records were provided late, but declined penalties because there was no demonstrated prejudice and the claims did not depend on the missing records.

Practical takeaways

• Attendance problems can justify dismissal, but process still matters: even where the employer has strong substantive reasons, it should give a final opportunity to respond before termination.
• Contribution can significantly reduce remedies: where the employee's own conduct materially contributes, the Authority can apply a percentage reduction (here, 50%).
• Break claims need evidence: vague evidence is unlikely to overcome employer records and consistent witness evidence.
• Wage deductions are easier to defend with a paper trail: clear payslips, bank records and written consent matter.

Read the full ERA determination (embedded)

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