Mujahid Khan v Chief Executive of the Ministry for Primary Industries [2026] NZERA 316

This Employment Relations Authority (ERA) determination is an interim reinstatement decision. Mujahid Khan had worked for the Ministry for Primary Industries (MPI) for 18 years as a senior quarantine officer. MPI dismissed him after complaints about a lunch visit to a friend's house during work hours, use of an MPI vehicle, and an allegation that he raised his voice at another employee. The ERA did not finally decide whether the dismissal was unjustified. It decided that Mr Khan had an arguable case, that interim reinstatement was practicable and reasonable, and that the balance of convenience and overall justice favoured him returning to work while the substantive claim was progressed. MPI was ordered to reinstate Mr Khan to payroll within 5 working days and to his previous position on an interim basis within 7 working days. The full determination is embedded at the end of this page.

Non-publication orders

MPI sought non-publication of the names and identifying details of the complainants and witnesses involved in the employment investigation. The ERA accepted that the case involved sensitive workplace matters and that there was a public interest in employees being able to participate in employment processes without fear of public exposure.

The order was targeted. The names of the complainants and witnesses involved in the investigation, or named in MPI's affidavits, were not to be published. They were to be referred to by initials bearing no relationship to their actual names. This article follows that approach.

Background

Mr Khan was employed by MPI as a senior quarantine officer. He had been employed for 18 years and his employment was governed by a collective agreement between MPI and the New Zealand Public Service Association. His employment was terminated on 6 October 2025. He raised a personal grievance for unjustified dismissal on 15 October 2025.

On 27 March 2026, Mr Khan applied to the ERA for interim reinstatement. Interim reinstatement is a temporary remedy. It can put an employee back on payroll and, depending on the order, back into the role while the ERA moves the substantive claim towards a final investigation and decision.

The complaints MPI investigated

Two employees made complaints about Mr Khan. The first complaint concerned an incident on 10 June 2025. Mr Khan had taken a colleague, referred to as RTH, to a friend's house for lunch during work hours. The complaint also included allegations about inappropriate comments, pressure to clear a prohibited item, pressure to attend the lunch, and pressure not to report the matter.

After investigating, MPI concluded that the established part of the first complaint was that Mr Khan had pressured RTH to go to his friend's house for lunch after she had repeatedly said she did not want to go and needed to return to the office. MPI also concluded that Mr Khan breached its fleet vehicle policy by using an MPI vehicle for a personal reason unrelated to work activities.

The second complaint concerned 12 June 2025. Another employee alleged that Mr Khan had raised his voice at him when asked to continue work at about 5.30 pm. MPI concluded that this conduct was not consistent with MPI's values and amounted to misconduct.

Why MPI dismissed Mr Khan

MPI decided that Mr Khan had engaged in serious misconduct in relation to the first complaint. It treated the lunch visit and the fleet vehicle policy breach as serious misconduct. It also found misconduct in relation to the allegation that Mr Khan had raised his voice.

MPI also took into account a warning issued on 14 August 2024. That warning remained on Mr Khan's record for 12 months. The ERA noted that the use of that prior warning remained a live issue, including whether it related to previous conduct of a similar nature or previous serious misconduct.

The 2026 amendment point

A useful part of this determination is the ERA's discussion of the recent amendment to the Employment Relations Act 2000. On 21 February 2026, a new s 123C was inserted into the Act. The ERA recorded that, where an employee contributed to the situation giving rise to the personal grievance, the Authority must not provide certain remedies, including reinstatement.

Mr Khan applied for interim reinstatement on 27 March 2026, after the amendment commenced. However, he had been dismissed on 6 October 2025. The ERA found that he had an existing right to bring a dismissal claim before the amendment commenced. Because the interim reinstatement application related to that existing right, the application was considered under the repealed legislation.

The interim reinstatement test

The ERA applied the usual interim reinstatement framework. Mr Khan needed to show that there was a serious question to be tried. The ERA then had to consider the balance of convenience, including the relative impact on each party during the interim period. Finally, the ERA had to assess where the overall justice lay.

The evidence at this stage was affidavit evidence and untested. That is why the ERA's findings were provisional. The substantive unjustified dismissal claim still needed to be investigated and finally determined.

There was a serious question to be tried

The threshold for a serious question to be tried is not high. Mr Khan only needed to show that his unjustified dismissal claim was not frivolous or vexatious. The ERA found that he met that threshold.

The problem for MPI was the way it classified the conduct as serious misconduct. In relation to the lunch visit, the ERA said it was not clear on what basis MPI had established that Mr Khan had engaged in behaviour that could amount to serious misconduct as described in MPI's policies. In relation to the second complaint, MPI itself had treated the raised voice allegation as misconduct, and its disciplinary guide suggested misconduct would normally not result in dismissal.

The termination letter referred to MPI values and clause 8.7 of the collective agreement. However, it did not identify the specific categories of serious misconduct in MPI's policies or explain how Mr Khan's conduct fitted within those categories. It also did not explain why the fleet vehicle policy breach amounted to serious misconduct, rather than misconduct that might ordinarily lead to a warning.

The ERA found that the evidential basis and the category of serious misconduct relied on by MPI remained unclear at the interim stage. There was therefore a live issue for the substantive investigation about whether a fair and reasonable employer could dismiss Mr Khan if the behaviour did not amount to serious misconduct.

There was also an arguable case for permanent reinstatement

MPI argued that reinstatement was not practicable or reasonable. It relied on alleged loss of trust and confidence, Mr Khan's allegations of prejudice and collusion, the high-trust nature of a biosecurity role, lack of alternative duties, the revocation of a statutory warrant, possible distress to other employees, reputational risk, and delay.

The ERA was not persuaded at the interim stage. Mr Khan accepted that he took RTH to his friend's house for lunch, but said he genuinely believed she was agreeable to attending. The ERA said he had made an error of judgment and should have reflected further, but that did not establish a reasonable basis for MPI's claimed loss of trust and confidence.

The ERA also considered Mr Khan's comments about possible collusion in context. He had produced witness statements from family members who attended the lunch and supported his view that RTH was comfortable. He also appeared to have difficulties in his working relationship with another employee. The ERA found his concerns were legitimate given the timing of the complaints.

The mobile and rotational nature of the senior quarantine officer role was also important. Mr Khan's role involved work at different facilities, including the airport, ports, mail inspection facilities and vessels. That suggested less daily interaction with the complainants if he returned.

MPI also submitted that Mr Khan needed a statutory warrant to perform aspects of the quarantine officer role and that he was not a fit and proper person. The ERA referred to the Biosecurity Act 1993 and found that, on the face of it, there did not appear to be a statutory impediment to Mr Khan obtaining a statutory warrant.

The delay point did not defeat the application. Mr Khan had raised a personal grievance through his union, attended mediation, changed representative, and organised legal aid before filing the interim reinstatement application. The ERA accepted that explanation and found no evidence that MPI had been materially prejudiced by the delay.

The balance of convenience favoured Mr Khan

MPI relied on cases where employer risk outweighed temporary employee detriment. The ERA distinguished those cases. This case did not involve the same direct management breakdown or the same public-facing reputational and safety risks that were present in the authorities relied on by MPI.

The ERA found there was no evidence that the complainants could not work with Mr Khan if he was reinstated, or that their working relationships were broken to the point that interim reinstatement should be refused. It also found that Mr Khan's case did not involve the public in a way that created a real reputational harm risk to MPI if reinstatement was ordered.

Considering all of the relevant factors, the ERA found the balance of convenience lay with Mr Khan.

Overall justice favoured interim reinstatement

The ERA found an arguable case for unjustified dismissal and an arguable case for permanent reinstatement. Mr Khan had worked for MPI for 18 years. The dismissal had significantly affected his financial situation, and MPI acknowledged the potential financial impact.

The ERA also accepted that damages would not be an adequate remedy. Mr Khan had developed skills and experience in a reasonably unique quarantine officer role. The ERA referred to the principle that money is a poor substitute for the loss of a job. Overall justice favoured interim reinstatement.

Why this case matters

This case matters because it shows the importance of properly classifying misconduct. An employer may be able to establish that something went wrong. That does not automatically mean serious misconduct is established. If an employer's own policy separates misconduct from serious misconduct, the dismissal letter should explain why the established conduct fits the serious misconduct category being relied on.

It also shows the danger of relying on broad values language without doing the harder analysis. Saying an employee was not trustworthy, respectful or responsive may not be enough where the policy contains specific misconduct and serious misconduct categories. The ERA wanted to know how the established conduct fitted the policy framework and why dismissal, rather than a warning, was open to MPI.

The prior warning issue is another practical point. A live warning may not always justify a more serious outcome. The employer still needs to consider whether the warning was for similar conduct, or previous serious misconduct, and whether it can fairly be used in the particular dismissal decision.

The reinstatement analysis is also useful. Employers often argue that trust and confidence has broken down. The ERA treated that as a claim requiring careful scrutiny. An employee denying wrongdoing, or maintaining a different view of events, does not automatically prove that reinstatement is impracticable.

Finally, the decision is useful for the transitional effect of the 2026 amendments. The ERA treated Mr Khan's dismissal claim as an existing right that arose before the new s 123C commenced. That meant the old legislation applied to the interim reinstatement application.

Practical takeaways

• Interim reinstatement is not a final win: it means the employee has crossed the interim threshold and returns pending the substantive case.
• Serious misconduct needs proper classification: employers should link the proven conduct to the serious misconduct category in their policy.
• Values wording is not a shortcut: broad values breaches may not explain why dismissal was justified.
• Fleet vehicle breaches are fact-sensitive: using a work vehicle improperly may be misconduct, but the employer still needs to explain why it is serious misconduct if dismissal is imposed.
• Warnings need careful use: a prior warning is more useful where it relates to similar conduct or previous serious misconduct.
• Trust and confidence arguments require evidence: merely saying trust is gone will not always defeat reinstatement.
• Role structure matters: a mobile or rotational role may reduce the practical difficulty of reinstating an employee where complainants are still employed.
• Delay is not always fatal: union involvement, mediation, change of representative and legal aid issues can explain delay in seeking interim reinstatement.
• Reinstatement remains powerful: where money is a poor substitute and the role is specialised, reinstatement can be the interim remedy.
• 2026 amendments need date analysis: whether the old or new remedies regime applies may depend on when the employee's dismissal right arose.

Read the full ERA determination (embedded)

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