Nata Venceslau Dos Santos v Nresh Group Limited [2026] NZERA 363

This Employment Relations Authority (ERA) determination concerns Nata Venceslau Dos Santos, a painter's assistant employed by Nresh Group Limited. Mr Dos Santos claimed unjustified disadvantage, unjustified dismissal, wage arrears, holiday pay, interest and penalties. The ERA found Nresh had created a hostile and insecure work environment and had then dismissed him without a fair process or substantive justification. The Authority rejected the health and safety disadvantage claim and rejected a separate breach of contract penalty claim, but upheld parts of the wage, holiday pay, record-keeping and good faith claims. Nresh was ordered to pay $25,000 compensation, $1,440 gross lost wages, $2,698.15 gross contractual wage arrears, public holiday entitlements for Good Friday and ANZAC Day 2024, interest, and $1,500 of a penalty to Mr Dos Santos. A further $1,500 penalty was payable to the Crown. Costs were reserved. The full determination is embedded at the end of this page.

The short point

The Authority found that Nresh treated Mr Dos Santos in a way that created an insecure and hostile employment environment, including through threatening or unreasonable comments and references connected with his work visa position. It then dismissed him and two other employees in a short meeting, without prior notice of a disciplinary meeting, without providing the alleged concerns and evidence, without giving a proper opportunity for representation or support, and without genuinely considering any response before making the decision.

Nresh tried to justify the dismissal by relying on alleged conduct and performance concerns, including negative comments and the use of an offensive term. The problem was that those matters had not been properly investigated or put to Mr Dos Santos as part of a fair disciplinary process. The ERA was also not satisfied that Nresh had substantive justification for dismissal.

The case is also useful on wage arrears. The employment agreement said Mr Dos Santos would work a minimum of 40 hours each week. Nresh argued there had been an oral agreement to reduce hours during quiet periods, but there was no written variation and the Authority was not satisfied there had been proper agreement to change the minimum-hours term.

Background

Nresh Group Limited is an Auckland-based commercial painting contractor. Mr Dos Santos is a Brazilian national who came to New Zealand in 2023. There was dispute about when and how his work began. Nresh said there was initially a one-week trial and only occasional work while a visa process was underway. Mr Dos Santos said he worked steadily for about three and a half months while on a visitor visa.

On 29 October 2023, Mr Dos Santos received a formal job offer and employment agreement from Nresh. On 28 November 2023, he was granted an Accredited Employer Work Visa allowing him to work for Nresh in Auckland. His role was painter's assistant.

The working relationship deteriorated. Mr Dos Santos said the director, Wanderson Silva, made threatening and unreasonable comments, including threats about dismissal, comments connected with the employees' opportunity to work in New Zealand, and comments involving his visa position. Nresh denied many of those allegations and said Mr Dos Santos had conduct and attitude problems that affected the team and client work.

Mr Dos Santos also alleged that he had been put in unsafe working-at-height situations, including working on roofs without proper training or without a harness connected to an anchor point. Nresh denied those allegations and relied on health and safety documents, training material, toolbox meeting records and site controls.

The 21 May 2024 dismissal

On 21 May 2024, Mr Dos Santos was called to a short meeting with Mr Silva, along with two other employees. Mr Dos Santos said he was told he was being dismissed because of his friendship with his colleagues. It was not disputed that the meeting was short. Later that afternoon, Nresh emailed him to say his employment would end on notice, effective two weeks from that date.

The Authority later considered recordings and transcripts of further discussions after notice of dismissal had been given. Those discussions were important because they supported Mr Dos Santos' case that Mr Silva considered he could control the outcome and act as he wished in relation to the employment and visa situation. Nresh argued that the dismissal was on notice and that Mr Dos Santos was later encouraged to correct his behaviour and remain employed.

The ERA rejected the idea that this fixed the problem. The notice of dismissal was never formally retracted. Given Mr Dos Santos' visa status and the way the dismissal had been handled, it was reasonable for him to treat the employment relationship as broken and move to alternative employment.

Unjustified disadvantage: hostile and insecure workplace established

The Authority accepted that Mr Dos Santos' evidence about threatening, harsh and unreasonable comments was detailed, contextual and internally consistent. The alleged comments were also consistent with the way the dismissal occurred and with the later recorded discussions.

The ERA found it was more likely than not that comments of the kind described by Mr Dos Santos were made. Objectively, those were not the actions of a fair and reasonable employer. They contributed to a hostile and insecure workplace. Mr Dos Santos therefore established an unjustified disadvantage grievance on that basis.

Health and safety disadvantage claim not established

Mr Dos Santos did not succeed on the health and safety aspect of the disadvantage claim. The Authority considered the competing evidence, including Nresh's documents and Mr Dos Santos' allegations about working at heights. On the balance of probabilities, the ERA was not satisfied that the health and safety allegations were proved.

That meant the disadvantage claim succeeded because of the hostile and insecure workplace finding, not because of a proved working-at-height breach.

The dismissal process was badly flawed

Nresh is a small business and did not have a dedicated human resources function. The Authority allowed for that context, but it did not excuse the absence of a proper disciplinary process. The ERA accepted that warnings did not necessarily need to be formal written warnings under the employment agreement, but it was still unsafe to rely on alleged verbal warnings that were not supported by contemporaneous notes or reliable records.

The Authority placed weight on the absence of any proper process before dismissal. Mr Dos Santos had no warning that the 21 May 2024 meeting would be a dismissal or disciplinary meeting. He was not given a proper opportunity to bring a support person or representative. Nresh did not provide all relevant information about the alleged concerns. It did not provide a real opportunity for him to comment before the decision was made. The dismissal email made clear that a decision had already been made.

These were not minor defects. They resulted in Mr Dos Santos being treated unfairly. The Authority found Nresh had failed to show a procedurally fair process.

No substantive justification for dismissal

Nresh argued that Mr Dos Santos' conduct, including alleged negative comments and use of an offensive term, justified dismissal. The Authority was not persuaded. The alleged concerns were not properly raised with Mr Dos Santos before dismissal, and he was not given a proper opportunity to respond.

The Authority also noted that Mr Dos Santos was not the only employee initially dismissed. Three employees were dismissed together and none of them had been given a proper chance to participate in a disciplinary investigation or respond before the decision was made. The ERA considered this indicated the dismissal was not genuinely about individual conduct or performance issues in the way Nresh later argued, but was connected with the personal friendships between the employees.

The ERA found Nresh had failed to show either procedural fairness or substantive justification. Mr Dos Santos was unjustifiably dismissed.

Lost wages and compensation

Mr Dos Santos sought lost remuneration for the shortfall between what he would have earned at Nresh and what he earned with his new employer for three months after dismissal. Nresh argued he had already arranged to vary his visa to work for a different employer, and that any lower rate was his own choice.

The ERA accepted that Nresh's unjustified actions created a hostile work environment, contributed to Mr Dos Santos' insecurity, and caused him to look for alternative work while still employed. The accepted lost wage figure was $1,440 gross.

For compensation, Mr Dos Santos sought substantial awards for both the disadvantage and dismissal grievances. The Authority accepted that Nresh's conduct had a significant impact on his mental and emotional wellbeing, including stress, anxiety, loss of confidence, disrupted sleep and difficulty with normal daily activities. The Authority also accepted that Mr Silva's conduct after dismissal compounded the humiliation, particularly because the personal grievance letter contained personal information and was shared with others.

The ERA awarded $5,000 compensation for the unjustified disadvantage grievance and $20,000 compensation for unjustified dismissal, a total of $25,000.

No contribution reduction

Nresh sought a reduction in remedies, arguing that Mr Dos Santos contributed to the situation giving rise to his grievances. The Authority declined to reduce the remedies. Given the findings that Nresh acted unjustifiably both procedurally and substantively, no contribution reduction was warranted.

Contractual wage arrears: the 40-hour minimum mattered

Mr Dos Santos' employment agreement said he would work a minimum of 40 hours each week, Monday to Friday. His starting rate was $29.66 gross per hour, later increasing to $33 gross per hour from 11 March 2024. Nresh said there was a verbal agreement that he would be paid for only 30 hours during low-work periods.

The Authority rejected Nresh's position. There was no written acceptance of any variation, despite the employment agreement requiring written consent for changes. The Authority was also not satisfied that the minimum expectations for bargaining over changes to employment terms under section 63A of the Employment Relations Act were met. A lack of objection by Mr Dos Santos at the time did not amount to acceptance of a reduced-hours variation.

The payslips and timesheets showed Mr Dos Santos had not been paid for the minimum contracted 40 hours in several weeks. The accepted arrears were 87.51 hours, producing gross wage arrears of $2,698.15.

Travel time, overtime and rest-break arrears declined

Mr Dos Santos also sought payment for travel time to and from out-of-town sites, time preparing for and waiting at a job, and rest-break related arrears. These claims were declined. The Authority was not satisfied there was an agreement to pay travel time, and considered some of the claimed hours approximate and insufficiently reliable.

The Authority was also concerned that awarding additional travel time or overtime could double-count against the 40-hour top-up already awarded for the relevant weeks.

Public holidays and interest

Mr Dos Santos succeeded in claiming public holiday entitlements for work on Good Friday and ANZAC Day 2024. Nresh was ordered to pay time and a half and provide alternative holidays for those days.

Interest was also ordered on the wage and holiday pay arrears. The Authority directed that interest be calculated using the civil debt interest calculator from the date Mr Dos Santos lodged his application in the Authority.

Records, good faith and penalties

Mr Dos Santos' counsel requested his wage, time and leave records on 30 August 2024. Nresh did not provide them until January 2025. Nresh accepted there may have been a technical breach of its record-provision obligations under the Employment Relations Act and the Holidays Act.

The Authority also found a breach of good faith. The failures around access to relevant information and opportunity to comment before employment decisions were made were serious enough, and sustained enough, to justify a penalty.

The ERA fixed penalties at $500 for the record-related breaches, $500 for the public holiday pay breaches, and $2,000 for the good faith breach. Half of the total penalty was ordered to be paid to Mr Dos Santos and the other half to the Crown.

Contract breach penalties and recommendations declined

Mr Dos Santos also sought penalty findings for breach of the employment agreement. The Authority did not make a separate breach of contract finding. It considered that the unfair dismissal findings already dealt with the dismissal-related issues, and the health and safety contract breach allegation was not established.

The Authority also declined to issue a separate recommendation requiring Nresh to review its disciplinary processes. It considered Nresh's failures would be apparent from the determination itself.

Why this case matters

This determination is useful because it shows how employer conduct before dismissal can itself be an unjustified disadvantage. Threatening comments, pressure tied to immigration vulnerability, and an insecure working environment can have legal consequences even before the final dismissal decision is examined.

It is also a practical dismissal-process case. Nresh appeared to rely heavily on alleged verbal warnings and alleged poor conduct, but it lacked reliable records and had not given Mr Dos Santos a fair opportunity to respond before dismissing him. The result was both a procedural and substantive failure.

The wage arrears aspect is also important. If an employment agreement guarantees a minimum number of hours, an employer should not assume it can later reduce those hours by informal understanding. Changes to core employment terms should be properly agreed, recorded, and compliant with the minimum bargaining obligations in the Employment Relations Act.

Practical takeaways

• Visa-dependent employees are vulnerable: comments about immigration consequences can aggravate the unfairness of employer conduct.
• A dismissal on notice is still a dismissal: giving notice does not cure the absence of a fair disciplinary process.
• Alleged verbal warnings are risky: if warnings matter, keep reliable records of what was raised, when, and how the employee responded.
• Do not decide first and explain later: an employee must receive the concerns and relevant information before the decision is made.
• Support and representation matter: an employee should know when a meeting is disciplinary and have a reasonable opportunity to bring support or representation.
• Minimum hours clauses are enforceable: if the agreement says minimum 40 hours, reducing hours informally can create wage arrears.
• Variations should be written: especially where the agreement itself requires written agreement for changes.
• Record requests should be dealt with promptly: delay in providing wage, time and leave records can expose the employer to penalties.
• Good faith breaches can attract penalties: serious and sustained failures to provide information and opportunity to comment can go beyond ordinary process defects.

Read the full ERA determination (embedded)

If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Mobile / tablet tip: Some browsers do not display embedded PDFs reliably. Use the Open button above.

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