Lekeisha Ramsay v National Storage Ltd [2025] NZERA 269 - Probationary period dismissal held unjustified; $9,000 compensation + $14,040.40 lost wages; penalties dismissed

What happened (a clear narrative)

Ms Ramsay was employed by National Storage (NS) for just over three months. Her employment was terminated at a meeting on 4 October 2023, with one week's notice paid out. The invitation to attend that meeting was sent on 2 October 2023, just hours after NS communicated an extension of her probationary period. NS stated it was ending the employment because it assessed Ms Ramsay was not suitable to continue under the probationary period, and it also referred to punctuality, absences, and a day where family members were present at the workplace.

A striking feature of this case is the way the employer's data and process became the focal point: whether it was accurate, whether it was checked, and whether the employer meaningfully engaged with Ms Ramsay's responses. The ERA ultimately found the process fell short of what a fair and reasonable employer should have done.

The background leading to the "formal meeting"

The determination records a chain of internal communications that started on 2 August 2023 when a senior manager raised concerns after reviewing the clock-in system and learning there had been a number of lateness and absence events, as well as the family-on-site incident. That email prompted the manager of Ms Ramsay to respond quickly, noting he was already aware and had begun engaging with her.

Later, on 21 September 2023, Ms Ramsay's manager requested an "action plan" to reassure the employer she had sufficient home-life cover to attend rostered shifts on a full-time basis. Ms Ramsay replied with a lengthy email which, while acknowledging expectations, emphasised that her child was her number one priority and offered "best efforts" rather than a concrete solution. The ERA noted there was no evidence the employer responded to that email before the formal meeting invitation was sent.

The meeting that ended the job

The 4 October 2023 meeting ran from late morning into the afternoon and was recorded by contemporaneous handwritten notes. Ms Ramsay attended alone. The determination notes there was a break while the decision-maker considered the outcome, and there was a dispute about the length of the break and where Ms Ramsay waited during it. The handwritten notes recorded that the outcome to be delivered that day could include a warning, a performance improvement step, a first and final warning, or dismissal - and ultimately dismissal occurred that day.

The legal framework applied by the ERA

The ERA applied section 103A (the "fair and reasonable employer" test). It explicitly listed the familiar components: investigate sufficiently, raise the allegations, give a reasonable opportunity to respond, and genuinely consider the feedback.

The ERA also engaged with probationary period case law, noting the purpose of probation is to allow an employer to assess competence and suitability after an appropriate period for training, guidance, and (if necessary) modification or improvement. Importantly, the employer is not meant to be a passive critic. A probationary period is supposed to be set up so both parties can succeed, not fail.

Technology and evidence: why the data mattered

NS relied on a clock-in/clock-out phone application and also referenced alarm system data for arrival and departure times. However, the ERA found the alarm system data was of limited value because it did not identify which employee operated the alarm, and there were days with alarm activity when Ms Ramsay was not on site.

The larger issue became the way the attendance data was presented and relied on, including a headline claim of 19 days off, and whether NS took reasonable steps to check accuracy when Ms Ramsay challenged it.

Why the dismissal was found unjustified

The ERA broke the decision down into the three themes the employer relied on: performance, attendance/punctuality, and the family-on-site incident. Across those topics, the recurring theme was not just whether concerns existed, but whether NS applied a proper probationary process with fair opportunity to improve and genuine consideration of the employee's explanations.

1) "Performance issues" were not properly particularised

NS asserted serious performance concerns "from the outset", but the ERA found the material provided did not substantiate this in the way required. Training-related emails were seen as onboarding rather than a probationary review evidencing performance shortcomings, and there were no clear particulars raised to Ms Ramsay as a stand-alone performance case.

2) The family-on-site incident was raised, but not managed as a genuine probation issue

The ERA accepted the employer raised concerns about family members being at the workplace, and it found some aspects of Ms Ramsay's explanation unreliable. However, the ERA was not satisfied NS assessed and managed the issue through the probationary lens (training, guidance, expectations, escalation) before jumping to dismissal.

3) Attendance and punctuality - inaccurate headline data and failure to engage with feedback

The ERA found the employer's "19 days away" figure was likely inaccurate, including because at least three of the days counted were days Ms Ramsay was away at a work conference for NS. The ERA considered this was readily discoverable once raised, yet the figure continued to be repeated in the formal invitation and the dismissal letter.

The ERA also noted the employer did not properly take account of the process already underway through Ms Ramsay's direct manager, including the action plan email sent the day before the manager went on leave, and the absence of any response from NS to that plan before escalation to a formal meeting and dismissal.

Remedies - the numbers and how they were reached

Contribution (why compensation was reduced 10%)

The ERA considered whether Ms Ramsay contributed to the situation (section 124). It found contribution existed, including because Ms Ramsay did not see punctuality as a serious problem provided she had "cover", and because her responses about prioritising family obligations and the family-on-site incident were not aligned with what the employer reasonably expected.

However, the ERA treated the contribution as less serious than in cases where higher reductions were applied, and reduced compensation by 10% only.

Penalties - an important legal point on good faith

Ms Ramsay sought substantial penalties framed as breaches of good faith, alleging the employer failed to hear her before dismissal and failed to consider issues with the source data relied upon. Penalties were sought under section 134 (breach of employment agreement), and aiding and abetting penalties against two individuals under section 134(2).

The ERA dismissed the penalty claims. In summary, it agreed with the employer that good faith is a statutory duty under section 4 of the Act (with penalties provided for breach of that duty under section 4A), and it would be inconsistent to award a section 134 penalty by treating good faith as an implied term of the employment agreement. Because the primary penalty claim failed, the aiding and abetting claims necessarily failed as well.

Costs (still to be dealt with)

Costs were reserved. The ERA encouraged the parties to resolve costs, and set a timetable if not agreed: the applicant may file and serve a costs memorandum within 28 days, and the respondent then has 14 days to reply.

Practical lessons for employers and employees