Jonathan Rhodes v Barfoot & Thompson Limited [2026] NZERA 543

Barfoot & Thompson Limited dismissed Senior Property Manager Jonathan Rhodes for medical incapacity while he was recovering from concussion and further head injuries. The Employment Relations Authority found he had not received a genuine opportunity to recover, the inquiry into his prognosis was incomplete, an imminent neurological assessment was not awaited, and the proposed alternative role did not reflect clinical advice for a graduated return on reduced hours. The dismissal was unjustified and Barfoot & Thompson was ordered to pay $30,000 compensation.

Injuries and continuing work

Mr Rhodes began working for Barfoot & Thompson as a Property Manager in 2012 and was promoted to Senior Property Manager in 2017. The role involved responsibility for a large portfolio and demanding relationships with landlords, tenants and other stakeholders.

In November 2022 he was involved in a serious work-time vehicle accident. He continued working but developed fatigue and cognitive difficulties. In May 2023 he was diagnosed with concussion and began receiving occupational-therapy support. On 22 June 2023, while still performing the full demands of his role, he suffered a further head injury at work.

In August 2023 Barfoot & Thompson was told Mr Rhodes was not recovering well while working full time. The clinical advice was that concussion recovery commonly required time away followed by a gradual return with reduced workload and hours which increased as tolerance improved. The employer accepted it had received and adopted that guidance.

Despite that advice, Mr Rhodes remained on full duties until he began sick leave on 14 September 2023. His colleagues absorbed much of his work, placing strain on the small branch.

The alternative role remained full time

On 21 September 2023, Barfoot & Thompson offered Mr Rhodes a Property Manager position with a smaller portfolio and lower remuneration. But it remained a full-time job. Mr Rhodes declined it because he could not afford the lower income and was not medically able to commit to full-time hours.

The Authority found this was not a genuine alternative responsive to the available medical advice. The clinical guidance concerned pacing, reduced days and reduced hours followed by gradual increases. Reducing the number of properties while retaining full-time hours did not engage with that guidance, and the employer did not investigate whether the role could form a safe graduated return.

The proposed graduated return

In December 2023 Mr Rhodes's general practitioner recommended a trial return of three hours a day, three days per week. Barfoot & Thompson declined and said he could not return until cleared through ACC's Stay at Work service. The Stay at Work team advised that it could not give a full-return date because recovery from brain injury varied.

Mr Rhodes repeated his request in January 2024. Barfoot & Thompson said nine hours per week was not feasible, referred to the strain on the business, and advised that it was considering medical-incapacity dismissal. The Authority accepted that the branch was experiencing genuine operational pressure.

At a meeting on 15 January, Mr Rhodes told the employer that a neurological assessment was booked for 24 January. Barfoot & Thompson knew that potentially important medical information would be available within the month but chose not to defer its decision. On 16 January it terminated his employment on four weeks' notice.

No genuine opportunity to recover

Barfoot & Thompson argued Mr Rhodes had been given about six months to recover between June 2023 and January 2024. The Authority rejected that characterisation. For much of that period he remained at work under the full demands of his role, symptomatic and deteriorating. He suffered another injury while continuing to work with the employer's knowledge of the concussion diagnosis.

Time passing did not itself establish a genuine recovery opportunity. Recovery was not realistically supported when the employer left Mr Rhodes working full time and later declined the medically proposed graduated return.

The medical inquiry was incomplete

The Stay at Work service's inability to provide a timeframe did not resolve Mr Rhodes's prognosis; it confirmed that no plan yet existed. Barfoot & Thompson also knew the neurological assessment was imminent. The Authority found it could not treat that assessment as sufficiently material to weigh against operational pressures and then argue it had no bearing on prognosis.

Mr Rhodes's agreement gave Barfoot & Thompson discretion to require an independent medical examination at its cost. The Authority accepted that using this power was not a contractual precondition to dismissal. But it was a mechanism capable of resolving the very uncertainty the employer relied on. Having chosen not to obtain an examination or await the neurological assessment, the employer could not use the continuing uncertainty as justification for dismissal.

The employer's heightened responsibility

Barfoot & Thompson had made some genuine efforts. It maintained contact, sought information from the Stay at Work service, provided advance warning that dismissal was possible, met with Mr Rhodes and his support person, and used colleagues and relief staff to manage work where possible.

But the employer's own management had also contributed to the severity of the incapacity. Mr Rhodes continued performing full duties after Barfoot & Thompson knew he had concussion, and he then suffered a further workplace head injury. This heightened the responsibility to take reasonable rehabilitation steps before ending the relationship for the resulting incapacity.

The genuine strain on the branch did not outweigh the incomplete prognosis inquiry, the absence of a realistic recovery opportunity, and the failure to test a clinically appropriate alternative. The dismissal was not one a fair and reasonable employer could have made.

No finding of predetermination

Although the dismissal was unjustified, the Authority did not find that Barfoot & Thompson had predetermined the outcome. It had notified Mr Rhodes that dismissal was being considered, invited his response and met with him and his support person. An employer may form a provisional view while remaining open to persuasion. The problem was that the inquiry underlying the view remained incomplete.

Why lost remuneration was declined

Mr Rhodes sought 18 weeks' lost remuneration, arguing a proper process would have kept him employed while a supported return was developed. The Authority accepted his employment likely would have continued for a further period while the neurological assessment and genuine alternatives were considered.

However, Mr Rhodes was receiving ACC income compensation at 80 percent of his pre-incapacity earnings and had exhausted his paid leave. Barfoot & Thompson had no contractual obligation to top up the difference. Had he remained employed during the further reasonable process, the evidence indicated he would have continued receiving the same ACC compensation and no additional wages. The dismissal therefore did not cause the claimed shortfall, and no lost-remuneration award was made.

$30,000 compensation and no contribution

Mr Rhodes gave compelling evidence about the dismissal's impact. He lost income security, valued work and connections with colleagues he considered friends while vulnerable and still recovering from brain injury. The Authority awarded $30,000 compensation for the harm attributable to the unjustified dismissal.

Declining the full-time alternative role was not blameworthy because it did not reflect the graduated return recommended clinically. The protected work-phone material had no causal connection with the medical-incapacity decision and could not support contribution. No reduction was made.

Why this case matters

Rhodes v Barfoot & Thompson shows that an employer assessing medical incapacity must examine the quality of the recovery opportunity, not merely the length of the absence. Continuing full duties while injured and then declining a medically proposed graduated return may mean the employee has never had a realistic chance to recover.

The decision also distinguishes between a dismissal being unjustified and lost wages being recoverable. A fair process would have prolonged employment, but the employee must still establish that the grievance caused an actual earnings loss beyond what would have occurred during that period.

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