Mereana Kennedy v Remarkable People Limited [2026] NZERA 296

This case is a strong example of constructive dismissal arising from an employer's failure to properly respond to safety concerns in the workplace. Mereana Kennedy resigned after repeated unwanted communications from a candidate who was also an employee of Remarkable People Limited. The Employment Relations Authority (ERA) found the employer had not done enough once the safety plan was breached, had failed to properly investigate the overall pattern of conduct, and then moved straight to a conversation about resignation. The resignation was found to be a constructive dismissal, the dismissal was unjustified, and remedies were ordered. The full determination is embedded at the end of this page.

Background

Remarkable People Limited (RPL) operated a recruitment and labour supply business throughout New Zealand. Ms Kennedy started work as an account manager on 19 February 2024, having previously worked for RPL in a different role in 2021. Her duties included managing and supporting candidates and placing them with RPL's clients.

The candidate was part of the work environment Ms Kennedy was required to deal with. He was an employee of RPL, received placements through RPL, and communicated with staff about work opportunities. After a restructure, Ms Kennedy was effectively left as the person in the branch dealing with candidates, while her colleague Josh Laird worked out his notice period and then left.

Ms Kennedy resigned on 7 May 2024. She said she had no real choice because she felt unsafe in the office and because RPL would not agree to alternatives such as working from home or meeting candidates in public spaces until another staff member was hired. RPL denied constructive dismissal and said it had taken reasonable steps to address the concerns raised.

The 90 day personal grievance issue

RPL argued that Ms Kennedy had not raised a personal grievance within the required 90 day timeframe. The ERA rejected that argument for the core constructive dismissal claim. Ms Kennedy resigned on 7 May 2024 and emailed RPL on 15 May 2024. Her email referred in the subject line to mediation, compensation and constructive dismissal, and raised her concerns about feeling unsafe because of the candidate's behaviour.

The email also raised an alleged "sanction" preventing her working for other traffic management companies. RPL responded to those issues, including the safety concerns and the alleged sanction. A later representative's email on 3 July 2024 expressly referred to the constructive dismissal grievance and foreshadowed an ERA statement of problem if mediation did not occur.

The ERA applied the orthodox approach that there is no magic formula of words required to raise a personal grievance. The question is whether the employer knows what it is responding to and has enough information to respond on the merits. Read together, the communications were enough to raise grievances about the handling of Ms Kennedy's safety concerns and the sanction placed on her working elsewhere.

However, some matters were not raised in time. The ERA found there was not enough detail in the 15 May email about alleged bullying by Mr O'Regan connected with comments about moving the work car, exchanges on the final day, or reimbursement for the sale of Ms Kennedy's car. Those matters could not proceed as separately raised grievances because they were not sufficiently notified within 90 days.

Was Ms Kennedy casual?

RPL also relied on the idea that Ms Kennedy was a casual employee. Both sides accepted the employment was initially intended to be casual. There was no new written individual employment agreement for the account manager role, other than the agreement from Ms Kennedy's earlier employment with RPL.

That label did not resolve the case. After the restructure, Ms Kennedy applied for and retained the account manager role. It was office-based, involved regular hours, and was more like a permanent role than a series of separate casual engagements. RPL's own evidence was that Ms Kennedy would have become permanent had she stayed. The ERA found the real nature of the relationship appeared to be permanent.

In any event, the ERA made the practical point that casual employment does not mean an employee can never be unjustifiably dismissed. The real issue was whether Ms Kennedy's resignation should legally be treated as a dismissal.

What happened with the candidate

Ms Kennedy's concerns developed quickly. The candidate made inappropriate comments in person, by phone and by text message. Ms Kennedy said the communications escalated, including frequent calls and messages outside ordinary work hours, and comments that became increasingly personal and unprofessional.

On 23 April 2024, while Mr O'Regan was visiting after the restructure, Ms Kennedy heard the candidate make an insulting comment about her during a call with Mr Laird. Ms Kennedy said Mr O'Regan initially criticised her for not answering the candidate's calls before he understood what had been happening. Later, when Ms Kennedy explained the issue, Mr O'Regan apologised and appeared sufficiently concerned to ask HR about immediately terminating the candidate's placements.

HR advised that RPL could not summarily terminate the candidate and said the material did not justify a disciplinary investigation on what had been provided. However, HR accepted there had been constant late calls, an inappropriate text, and communications that crossed boundaries. A safety plan was then put in place: Mr O'Regan would manage the candidate, Ms Kennedy would not manage him, and the office door would be locked when Ms Kennedy was alone.

The safety plan was not enough once it was breached

The problem for RPL was what happened next. The candidate continued to communicate with Ms Kennedy after he was supposed to stop contacting her. He sent a further email that still treated Ms Kennedy as the person he was trying to communicate with and included more personal comments. Ms Kennedy forwarded that email to Mr O'Regan and asked him to manage the candidate from then on.

Later that same day, the candidate came to the office and tried to speak to Ms Kennedy through the locked door. She was alone in the office. The locked door was the only reason he could not simply enter. Ms Kennedy became very upset and said she felt extremely unsafe and isolated.

Ms Kennedy said she emailed Mr O'Regan over the weekend asking to work from home because she was afraid and could not perform her role properly in the office. RPL said Mr O'Regan did not receive that email, but the ERA accepted Ms Kennedy's evidence that she sent it. Ms Kennedy also told Mr O'Regan by phone on 6 May that she did not feel safe working alone in the office.

The employer moved to resignation instead of solving the safety problem

On 6 May, Ms Kennedy asked to work from home until another staff member could be hired. Mr O'Regan told her working from home was out of the question and that another staff member was unlikely to be hired for at least three months. Ms Kennedy said she might have to leave because she did not feel safe.

On 7 May, Mr O'Regan returned to the office. After other work matters were dealt with, the conversation turned to whether Ms Kennedy still wanted to resign. Ms Kennedy said she liked the job but did not feel safe and needed to work from home until another person was in the office. She also proposed meeting candidates in public spaces as an alternative safety measure. Those alternatives were declined.

Ms Kennedy said that if that was the position, she had no option but to resign. Mr O'Regan asked whether payroll had been completed, said they could call it a day, drove her home, and accepted her resignation. During the trip home, he also told her she would not be working for traffic management companies and that RPL could sanction her.

Why the ERA found constructive dismissal

Ms Kennedy relied on the third recognised category of constructive dismissal: a breach of duty by the employer that leads the employee to resign. The ERA accepted that RPL owed duties of good faith, fair and reasonable dealing, and providing a safe workplace. The question was whether RPL's breach caused the resignation and whether the breach was serious enough that resignation was reasonably foreseeable.

The ERA found Ms Kennedy resigned because she felt unsafe as a result of the candidate's unwanted communications and because she believed RPL had not taken her concerns seriously. That was particularly important because she would be the only staff member in the office for several months and there were no accepted alternatives to working in the office.

RPL's position that it did not know how serious the matter was did not succeed. Ms Kennedy had provided further information, forwarded further communications, and told Mr O'Regan about the candidate coming to the office. Mr O'Regan did not give evidence to refute Ms Kennedy's account of their calls, emails or final conversations. The ERA accepted Ms Kennedy as a careful and consistent witness.

The ERA was also critical of RPL's failure to properly investigate the wider pattern. RPL appeared to focus on whether the text messages and call logs alone justified discipline, while discounting or failing to explore the verbal and in-person communications Ms Kennedy had raised. A fair and reasonable employer could be expected not to discount verbal conduct when assessing whether a workplace safety concern was serious.

Why the constructive dismissal was unjustified

The ERA found RPL had breached both the duty of good faith and the duty to provide a safe workplace. Ms Kennedy had communicated that she did not feel safe, that the safety plan had not been complied with, and that she was considering resignation if her concerns were not addressed. RPL responded by saying there were no alternatives to office work and failed to address the fact the plan had already failed.

Applying s 103A of the Employment Relations Act 2000, RPL's actions were not what a fair and reasonable employer could have done in all the circumstances. Ms Kennedy was entitled to have her concerns considered properly and to have her employer respond to further concerning behaviour. The ERA found RPL had effectively closed its mind to the seriousness of the matter and had stopped short of considering the overall pattern and escalation.

The resignation was therefore a constructive dismissal, and the dismissal was unjustified.

Remedies

Compensation: $20,000

Ms Kennedy sought $20,000 compensation for humiliation, loss of dignity and injury to feelings. The ERA accepted the impact on her. She felt unsafe, fearful, unsupported, humiliated, and disregarded. She remained affected more than a year later when thinking about the candidate coming to the office and trying to enter through the locked door.

The ERA placed the impact in band two and awarded $20,000 under s 123(1)(c)(i).

Lost wages: 5.5 weeks

Ms Kennedy obtained new employment on 21 June 2024, about 6.5 weeks after resigning. RPL argued she should have mitigated by accepting work as a candidate for RPL. The ERA rejected that submission in circumstances where she had resigned because of unresolved workplace safety concerns.

RPL had already paid one extra week's wages at the end of employment. The ERA therefore ordered lost wages equivalent to 5.5 weeks wages.

No contribution reduction

The ERA considered contribution under s 124. It found the situation giving rise to the grievance was caused by RPL's actions: the failure to fully address Ms Kennedy's unsafe working environment and the failure to put adequate measures in place in light of what was known about the candidate's conduct. It would have been unfair to apportion blame to Ms Kennedy. No reduction was made.

Why this case matters

This determination is a useful safety and constructive dismissal case. It shows that an employer cannot avoid responsibility by saying an employee did not use exactly the right label, or by treating a safety issue as less serious because some of the conduct was verbal rather than written. Where the issue is repeated unwanted workplace communications, escalation, and an employee feeling unsafe, the employer needs to engage with the whole pattern of conduct.

It also shows that putting a safety plan in place is not necessarily enough. If the plan is breached, the employer needs to reassess and respond. A locked office door may be an interim measure, but it is not a long-term answer if the employee is expected to work alone and the person causing the concern is still attempting contact.

Practical takeaways

• No magic words are needed for a Personal Grievance (PG): if the employer understands the substance of the complaint, the grievance may be properly raised.
• Casual labels are not decisive: even if work starts casually, the real nature of the relationship can become permanent, and casual status does not remove dismissal protections.
• Safety concerns require active management: an employer must consider the whole pattern of conduct, including verbal and in-person conduct, not just selected texts.
• A breached safety plan needs a fresh response: once the plan is not working, the employer should investigate, consult, and consider alternative arrangements.
• Constructive dismissal can follow from unsafe work: if the employer's breach leaves the employee with no real option but resignation, the resignation can be treated as a dismissal.
• Witness evidence matters: where the manager with the key conversations does not give evidence, the employer may struggle to challenge the employee's account.

Read the full ERA determination (embedded)

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