LJB v EBD [2026] NZERA 78

This is a "resignation turns into dismissal" case. The employee resigned on notice, expected to work out her notice, but was called into a surprise meeting and told to clear her desk and leave immediately. The Authority treated that as a dismissal at the employer's initiative (a sending away), found the process was fundamentally unfair, and made both compensation and penalty orders (including for withholding wages and failing to provide the wages and time record).

What happened (the story)

The employee (LJB) worked for the employer (EBD) for about 17 months. There was no dispute that LJB resigned on 29 March 2024 and gave one month's notice. Her final day of work was to be 24 April 2024 (working out her notice).

On 10 April 2024, while she was still employed and working out her notice, the employer's HR manager called her to a meeting and said he had "something unpleasant" to discuss. LJB said she was told there were allegations about her conduct (said to be in an email from the senior manager), but she was refused a copy of that email and refused information about who complained. She asked if her manager (the marketing manager) could be present, and that request was declined.

LJB's evidence was that she did not agree to shorten her notice. She said she was told to "clear my desk and leave immediately", threatened with "legal consequences" if she did not leave, and escorted out to her car. The employer's position was that the meeting was amicable and that LJB agreed to leave earlier than the end of her notice, with the employer paying in lieu of notice.

In the days after being sent away, LJB emailed the senior manager saying she had been "fired" and asking to be paid without deductions. The employer did not clearly correct that understanding at the time. The employer later wrote a response letter that both denied "dismissal" and also made extensive allegations about LJB's performance and conduct.

Was this a dismissal?

The Authority restated the legal principle that a dismissal is termination at the employer's initiative and can occur without the employer using the words "you are dismissed". A dismissal occurs where there is a "sending away" by the employer.

The Authority found it was more likely than not that what occurred was a disciplinary meeting and a summary termination at the employer's initiative. There was no genuine mutual agreement that LJB would finish early. The Authority accepted LJB's evidence she was willing to work out her notice, but was sent home.

The employment agreement had a pay-in-lieu of notice provision. But the Authority found the employer withheld 40 hours of pay and did not pay the full wages that were due. In that situation the employer could not rely on the pay-in-lieu clause. The Authority referred to authority confirming that if an employer elects to terminate immediately via pay in lieu, the payment must accompany the termination.

Unjustified dismissal: why the employer lost

The Authority applied s 103A of the Employment Relations Act 2000: what a fair and reasonable employer could have done in all the circumstances at the time. It highlighted the minimum procedural requirements in s 103A(3) and the good faith obligation to provide relevant information and an opportunity to comment.

The Authority found the process failures were complete:

• No advance notice of a disciplinary meeting or the allegations.
• No meaningful disclosure of the information relied on (the key email was not provided).
• No opportunity for representation and no reasonable opportunity to respond.
• The decision to terminate was effectively made before the meeting and the meeting was used to implement it.
• No adequate investigation involving the employee before deciding to dismiss.

On that basis, the Authority held the dismissal was unjustified.

Remedies: compensation, notice, and contribution

By the time of the Authority's decision, the employer had paid the unpaid notice wages (in November 2025, about 19 months after they should have been paid). Because those wages were ultimately paid, the Authority did not make a separate lost wages / notice reimbursement order.

The Authority awarded compensation of $16,500 for humiliation, loss of dignity and injury to feelings. It noted the abruptness of the sending away, and that being escorted out in view of others likely compounded the humiliation.

The Authority considered contribution under s 124 and declined to reduce remedies. The unfairness was driven by the employer's failure to meet statutory process requirements, and there was no basis to reduce the monetary remedies for employee contribution.

Withheld wages, time records, interest, and penalties

Two employment standard breaches were upheld:

• Wages Protection Act 1983: the employer did not pay the entire wages when they became payable and withheld 40 hours' pay.
• Employment Relations Act 2000, s 130: failure to provide the wages and time record immediately on request.

Because the withheld wages were paid only in November 2025, the Authority also ordered interest on the withheld wages, to be calculated using the civil debt interest calculator, from 27 April 2024 (the day after what would have been LJB's last day) until the date the employer actually paid the withheld wages (stated as 12 November 2025).

The Authority globalised penalties for the two breaches and imposed a total penalty of $9,000. It directed that 50% of the penalty (that is, $4,500) be paid to LJB, with the remainder paid for transfer into a Crown account. The Authority also noted the employer had been before the Authority previously for similar record and wage withholding issues.

A separate penalty for breach of good faith was declined because the Authority considered the compensation award adequately addressed the employer's failures to provide information and an opportunity to comment before dismissal.

Practical takeaways

• Sending someone home can still be a dismissal: an employer cannot avoid dismissal scrutiny by framing an early finish as "agreed" if it was not genuinely agreed.
• Pay-in-lieu requires actual payment: if an employer relies on a pay-in-lieu clause, it needs to pay correctly at the time it terminates. Withholding wages can undermine that position.
• Process matters even where there are allegations: withholding the key allegations and deciding first, then meeting later, is almost always fatal under s 103A.
• Wages/time records and wage withholding carry penalty risk: especially where the employer has prior history, penalties can be meaningful and part may be paid to the employee.

Read the full ERA determination (embedded)

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