Lillian Shorter v Waiheke Island Supported Homes Trust [2026] NZERA 54

This page summarises an Employment Relations Authority (ERA) determination about summary dismissal for alleged sleeping on a night shift, and related personal grievance allegations (including privacy and bullying arguments). The full determination is embedded at the end of the page.

What the Authority had to decide

The issues set for investigation included whether the employer acted unjustifiably to the employee's disadvantage (bullying, good faith, privacy), whether the employee was unjustifiably dismissed, and if so what remedies should be awarded (including reinstatement, lost wages and compensation).

What happened

Lillian Shorter was a recovery support worker who worked night shifts for the Waiheke Island Supported Homes Trust (WISH or the trust). The trust provides 24-hour residential care to high needs residents. WISH summarily dismissed Ms Shorter for sleeping during work hours after it recorded her sleeping during three shifts. Ms Shorter's position is that she had an agreement or understanding with the trust that she was entitled to sleep during her combined breaks.

The dispute did not arise in a vacuum. The determination records a long employment relationship (around 18 years) and a specific context for night work: historically, night shifts included time that was treated as a sleepover component, and later funding and contractual settings moved to an 'awake night support' model.

The Authority examined how night staff breaks operated and, critically, whether there was an agreement or shared understanding that staff could combine breaks and sleep during that combined break. The decision analyses meetings in 2021 about night arrangements and how those communications were understood by staff.

By late 2024 and early 2025, there were disputes about sick leave, ACC reimbursement, Christmas/New Year annual leave requests, and return-to-work discussions. The employee's son became involved in correspondence with management, and the employer initiated an investigation process about communications and alleged serious misconduct.

Against that background, the employer decided to use a camera to record night-shift activity. The video captured the employee over several shifts in late January 2025, and the employer treated the footage as evidence of sleeping during work hours.

The employer proceeded to summary dismissal for serious misconduct (sleeping on duty). The employee's position was that sleeping during combined breaks was permitted or at least commonly understood to be permitted, and that the employer's approach (including surveillance and the scope of its investigation) was unfair.

Key findings

• Video surveillance: By a relatively fine margin, the Authority accepted there was a basis to undertake recording as part of investigating suspected sleeping, given the difficulty of alternative investigative options on night shift. However, the surveillance did not resolve the separate fairness question of how the employer investigated and treated staff.
• Sleeping and breaks: The Authority concluded night staff did have an understanding from 2021 that they were able to sleep during their breaks, and that management had an awareness that sleeping was occurring, with general reminders but an element of turning a blind eye.
• Fairness and investigation: The Authority found the employer did not sufficiently investigate the practice/understanding and did not properly address disparity of treatment (including focusing surveillance and disciplinary steps on one night worker).
• Outcome: In conclusion Ms Shorter was unjustifiably dismissed by WISH. Remedies
• Reinstatement: Although reinstatement is treated as a primary remedy, the Authority declined reinstatement in the circumstances of a small organisation, a management team who said they would resign, and a serious breakdown in the working relationship (including extreme allegations made during the dispute).
• Contribution: The Authority made a contribution reduction to remedies, taking account of matters such as the employee not setting an alarm and sometimes sleeping beyond the break period. (Taking into account all of the above, I consider that a 25% deduction in remedies is warranted. Good faith)

Orders and remedies

The Authority's orders included:

• Within 28 days, the respondent must pay six months gross lost wages, plus 8% holiday pay on that amount, plus the employer's KiwiSaver contributions, less a 25% reduction for contribution. The parties have leave to return if there is a dispute about the amounts.
• Within 28 days, the respondent must pay $18,750 compensation for hurt and humiliation / injury to feelings (after the contribution adjustment).
• Costs were reserved. The determination sets a timetable for memoranda if costs cannot be agreed.

Why this case matters

• Serious misconduct requires fair process: even where an allegation (like sleeping on duty) can amount to serious misconduct, the employer still needs a careful, even-handed investigation and a proportionate response.
• Practice and expectations matter: if an employer has tolerated a practice (or staff have a legitimate expectation of it), the employer should clearly draw a line and communicate any change before relying on it as a dismissal ground.
• Surveillance is high-risk: video monitoring can sometimes be justified, but it should be policy-based, proportionate, and used with real care. Even where monitoring is justified, an employer can still lose the case if the wider investigation and decision-making are unfair.

Read the full ERA determination (embedded)

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