Lyon Kawhaaru v The Deck Tahuna Limited [2026] NZERA 288

This case shows how quickly an employer can accidentally (or deliberately) dismiss an employee by email. The cafe's owners intended to respond to a customer complaint and possible Police involvement. But their wording ("instant dismissal effective from 4th of June" and "you will not be able to attend the premises") was treated as an unequivocal sending away. The Employment Relations Authority (ERA) found an unjustified dismissal and awarded compensation and lost wages (with a contribution reduction). The full determination is embedded at the end of this page.

Background

Mr Kawhaaru worked as a cafe assistant for The Deck Tahuna Limited, which operated a cafe at a beach holiday park in Nelson. The directors (Debbie and Kevin Wilkes) were directly involved in day-to-day employment matters. Mr Kawhaaru had a written employment agreement.

The incident with the customer (4 June 2024)

On 4 June 2024, a customer (anonymised in the determination) approached the counter where Mr Kawhaaru was working. Mr Kawhaaru said they had previously had friendly interactions, and that the customer was confiding about a personal matter. Mr Kawhaaru said the customer became agitated and lunged at him.

CCTV footage existed (no audio). Mr Kawhaaru accepted he placed his hands around the customer's throat, causing the customer to step back, and said he immediately apologised and returned to work. The next day the customer made a formal complaint to the employer.

The employer's response: the 6 June email

On 6 June 2024 the employer asked Mr Kawhaaru to email his account. He did so that lunchtime and texted to say he had sent it. In a further text he said, "The Authority'll see you on Saturday" (his next rostered shift).

About five hours later, at 4:50pm, Mr Kawhaaru received an email from the directors. The email referred to Police involvement and said the situation "comes under serious misconduct". It quoted the serious misconduct clause in the employment agreement (including the words "after following a fair process"). The email then said the customer was seeking a trespass notice and, with that in mind, Mr Kawhaaru could not attend the cafe premises. It also said it would "result in instant dismissal effective from 4th of June".

Mr Kawhaaru replied minutes later saying the email was "quite incredible" and that he would seek employment advice about challenging the decision. A further email response from the employer said, in effect, it had no option unless the customer changed his mind, and described the situation as out of its control. Mr Kawhaaru was never charged and never received a trespass notice.

Dismissal vs abandonment

The employer later argued it had not dismissed Mr Kawhaaru and that he abandoned employment by not attending his next shift on 8 June 2024. The employer said it expected him to contact them to discuss "process" and a meeting.

The ERA rejected that. The critical point was that the employer's email was an unequivocal sending away: it told him he could not attend the premises and stated instant dismissal would result, effective from 4 June. If the employer actually intended to start a disciplinary process (and possibly suspend on pay), it needed to clearly say so and explain the process steps. The email did not do that.

The abandonment argument also failed on the employer's own clause: it required three working days away from work and required reasonable efforts to contact the employee to clarify why they were absent and whether they intended to return. Neither occurred. The employer did not contact Mr Kawhaaru when he did not attend the Saturday shift.

The ERA concluded Mr Kawhaaru was dismissed by the 6 June email, effective 4 June, and final pay was processed shortly after.

Why the dismissal was unjustified

The serious misconduct clause quoted by the employer required a conclusion "after following a fair process". The ERA found there was no fair process. Mr Kawhaaru was not invited to a meeting, was not told what process would be followed, and was not given a genuine chance to respond before the employer communicated an "instant dismissal" outcome.

The employer also did not meet the minimum procedural requirements in s 103A(3), and it did not comply with good faith information-and-comment obligations in s 4(1A)(c) when proposing a decision adverse to continued employment.

Remedies

Compensation

The ERA accepted Mr Kawhaaru's evidence of impact: distress, shock, loss of confidence, sleep and appetite effects, and financial stress. Compensation was set at $10,000 before contribution.

Lost wages and related amounts

Mr Kawhaaru obtained new employment starting 23 September 2024 (about 16 weeks after dismissal). He claimed 13 weeks' lost wages based on 30 hours per week at $23.15 per hour, plus 8% holiday pay and KiwiSaver. The ERA accepted mitigation evidence and ordered the wage loss plus associated holiday pay and KiwiSaver as "other money lost".

Contribution reduction (25%)

The ERA found Mr Kawhaaru contributed to the situation. It accepted the customer was agitated, but found touching the customer's throat was unnecessary and escalated the incident. A 25% contribution reduction was applied to all monetary remedies.

Penalties and costs

Mr Kawhaaru also sought penalties for alleged good faith breaches and for the directors allegedly aiding/abetting breaches. The ERA declined penalties. It noted penalties are punitive and require something calling for punishment on top of compensation. That threshold was not met on the evidence. The aiding/abetting claim also failed on the high proof threshold for s 134.

Costs were reserved. The parties were encouraged to resolve costs, and a memorandum timetable was set if costs could not be agreed.

Practical takeaways

• Be precise in disciplinary communications: if an employer intends to investigate and hold a meeting, it must say so clearly. Emails that state "instant dismissal" can be treated as dismissal.
• Suspension still requires process: even where Police are involved, a fair employer should generally propose suspension on pay (where appropriate), explain the process, and allow time for advice.
• Abandonment clauses are not shortcuts: they usually require a defined absence period and reasonable employer contact efforts.
• Contribution can materially reduce remedies: employee conduct during an incident can reduce compensation and wage loss awards even where the employer's process is unjustified.

Read the full ERA determination (embedded)

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