Nicholas Fry v Fire And Emergency New [2026] NZERA 116

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination. The full determination is embedded at the end of this page.

What happened

Nicholas Fry was first employed by Fire and Emergency New Zealand (FENZ) from 24 January 1986 until 17 November 2014. Mr Fry returned to FENZ in March 2022 as an Advisor Community Readiness and Recovery.

In January 2024 Mr Fry discovered he had not been enrolled into the New Zealand Fire Service Superannuation Scheme (FireSuper). This was despite him applying to join FireSuper in June 2022 and being told by FENZ in July 2022 that he had been accepted into FireSuper.

Mr Fry believed he was eligible to join FireSuper given the eligibility requirements, because TEP1 (who was a close friend and colleague) had been accepted into FireSuper and because FENZ had told him it had accepted him into FireSuper back in July 2022.

What followed was an exchange between Mr Fry and FENZ resulting in FENZ confirming that Mr Fry was not eligible to join FireSuper - he had been erroneously advised otherwise in July 2022. Also, and critically in terms of this employment relationship problem, FENZ removed TEP from FireSuper as FENZ discovered he was also not eligible and had been incorrectly allowed to join FireSuper previously.

TEP held Mr Fry responsible for their removal from FireSuper. This was because Mr Fry had told FENZ that TEP had been deemed eligible to join FireSuper and as his own circumstances were almost identical to TEP's he should also be eligible to join. The subsequent fall out between the two caused considerable distress for Mr Fry.

Mr Fry held FENZ responsible for TEP's removal from FireSuper as he believed FENZ had promised him directly that if he told them about TEP's eligibility TEP would not be removed from FireSuper.

Despite ongoing dialogue with FENZ, Mr Fry was unable to resolve his and TEP's eligibility for FireSuper, and Mr Fry felt that FENZ had broken its promise to him regarding TEP's eligibility for FireSuper; so, Mr Fry raised personal grievances for these two sets of actions. 1 This employee and their circumstances are an integral part of this employment relationship problem. However, they did not give evidence in my investigation meeting. Given that I could not test evidence relating to them and because some of the facts I have established may reflect badly on them I have decided not to name the employee and will refer to him as TEP.

Following this because FENZ failed to remedy its alleged failings and because Mr Fry believed it had failed to support him at work in connection with the events arising out of the alleged breaches, Mr Fry resigned. Based on this resignation Mr Fry raised a personal grievance for unjustified dismissal.

These three personal grievances form the employment relationship problem that I have investigated and this determination resolves. The Authority's investigation

I investigated this employment relationship problem by receiving written evidence and documents, holding an investigation meeting on 29 May 2025 and 27 November 2025 and assessing the written and oral submissions of the parties.

In my investigation meeting, under oath or affirmation, witnesses confirmed their written statements and gave oral evidence in answer to questions from myself and the parties' representatives.

As permitted by s 174E of the Employment Relations Act 2000 (the Act) I have not recorded all the evidence and submissions received, in this determination. I have set out my findings of fact and law, then based on this I have expressed conclusions on issues as necessary to dispose of the matter, and then I have specified the orders made as a result. The matters investigated

This employment relationship problem encompasses three personal grievances: (a) A personal grievance for unjustified action by FENZ in not enrolling Mr Fry into FireSuper in July 2022 when it told him he was eligible to join, with this action causing disadvantage to Mr Fry's employment. (b) A personal grievance for unjustified action by FENZ when it failed to meet its promise to Mr Fry - that by naming TEP as being the colleague eligible to join FireSuper FENZ would not cause TEP to be removed from FireSuper - with this action causing disadvantage to Mr Fry's employment. (c) A personal grievance for unjustified dismissal where Mr Fry resigned because of a series of breaches by FENZ's; these breaches including the actions comprising the two personal grievances, FENZ's failure to remedy the actions giving rise to the two grievances and then FENZ failing to support Mr Fry at work with the difficulties arising out of his ongoing work relationship with TEP.

Section 114(2) of the Act sets out what constitutes the raising of a personal grievance: For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address. 2 Employment Relations Act 2000, s 114.

So, there are two parts to raising a personal grievance: (a) Whatever communication being relied on as raising the personal grievance must be made within 90 days of the action giving rise to the grievance occurring or coming to the employee's notice. (b) The communication must make the employer aware that the employee is alleging a personal grievance. What happened?

Despite this advice Mr Fry was not enrolled into FireSuper in July 2022 and FENZ continued to deduct and pay employee contributions, and make employer contributions, to Mr Fry's KiwiSaver fund.

Mr Fry says FENZ promised him that if he gave it TEP's name, as TEP was the colleague in a similar role to him who had been enrolled into FireSuper as a returning employee, then it would not use that information to have TEP removed from FireSuper. FENZ failed to keep that promise after he gave them TEP's name as TEP was removed from FireSuper. FENZ failing to keep its promise was an unjustified action and this caused a disadvantage to his employment as it caused a breakdown in his working relationship with TEP and damaged his reputation with other staff. What happened?

After Mr Fry received the email of 23 January 2024 advising him that he was not enrolled in FireSuper he sent a reply email in which he stated, amongst other things, that other returning employees had been accepted back into FireSuper, so he assumed he had been enrolled. After a further exchange of emails Mr Fry sent an email on 13 February 2024 stating that one of his colleagues in a senior advisor role returned to FENZ and was accepted back into FireSuper and this had set a precedent.

Key issues

As permitted by s 174E of the Employment Relations Act 2000 (the Act) I have not recorded all the evidence and submissions received, in this determination. I have set out my findings of fact and law, then based on this I have expressed conclusions on issues as necessary to dispose of the matter, and then I have specified the orders made as a result. The matters investigated

In respect of the first personal grievance, FENZ has raised the issue of whether it was raised within the 90-day time frame.2 I will deal with this issue first.

Having received TEP's name as the employee who was in the same circumstances as Mr Fry and was eligible for FireSuper, the FENZ Senior People Advisor emailed FENZ payroll on 14 February 2024, stating: It seems we have another issue with Nick Fry in regard to him not being eligible for the NZ FireSuper. His colleague [TEP] who is in exactly the same role has been accepted into NZ FireSuper scheme. Are you able to look into who approved this at all? I have screen shot [TEP's] details below: ....

At this time, Grant Haywood, District Manager/Commander in Nelson, became involved. Mr Haywood spoke to Mr Fry about the issue with his enrolment in FireSuper. Mr Haywood encouraged Mr Fry to speak to the union and then arranged for Mr Fry to speak to the Chair of FireSuper.

On 2 April 2024 Mr Fry went on secondment in a Risk Reduction role; this was in a different team to Mr Fry's role in Community Readiness and Recovery. This meant Mr Fry did not have to work or interact with TEP on a regular basis. The secondment role had been offered to Mr Fry before the issues arose over his eligibility for FireSuper and with TEP.

Mr Fry's secondment was in place until 2 September 2024. During this time and up until 25 September 2024 TEP was on an extended period of sick leave and working from home - this was unrelated to the issues with Mr Fry.

Findings and reasoning highlights

Following this because FENZ failed to remedy its alleged failings and because Mr Fry believed it had failed to support him at work in connection with the events arising out of the alleged breaches, Mr Fry resigned. Based on this resignation Mr Fry raised a personal grievance for unjustified dismissal.

This employment relationship problem encompasses three personal grievances: (a) A personal grievance for unjustified action by FENZ in not enrolling Mr Fry into FireSuper in July 2022 when it told him he was eligible to join, with this action causing disadvantage to Mr Fry's employment. (b) A personal grievance for unjustified action by FENZ when it failed to meet its promise to Mr Fry - that by naming TEP as being the colleague eligible to join FireSuper FENZ would not cause TEP to be removed from FireSuper - with this action causing disadvantage to Mr Fry's employment. (c) A personal grievance for unjustified dismissal where Mr Fry resigned because of a series of breaches by FENZ's; these breaches including the actions comprising the two personal grievances, FENZ's failure to remedy the actions giving rise to the two grievances and then FENZ failing to support Mr Fry at work with the difficulties arising out of his ongoing work relationship with TEP.

Mr Fry says FENZ promised him that if he gave it TEP's name, as TEP was the colleague in a similar role to him who had been enrolled into FireSuper as a returning employee, then it would not use that information to have TEP removed from FireSuper. FENZ failed to keep that promise after he gave them TEP's name as TEP was removed from FireSuper. FENZ failing to keep its promise was an unjustified action and this caused a disadvantage to his employment as it caused a breakdown in his working relationship with TEP and damaged his reputation with other staff. What happened?

Mr Fry's employment was disadvantaged because of FENZ's failure to keep its promise; his working relationship with a senior colleague, TEP, was damaged to an extent that made day to day work difficult for him. Conclusion on unjustified action causing disadvantage grievance

Mr Fry has a personal grievance for unjustified action by FENZ that caused a disadvantage to his employment. Was Mr Fry constructively dismissed by FENZ?

A constructive dismissal is where an employee's resignation is treated as a dismissal - that dismissal can then be considered unjustified if the test for justification is not meet.3

I have already determined that FENZ breached a duty it owed to Mr Fry when it failed to keep its promise to him that TEP's identity would not be used to have TEP removed from FireSuper. However, I am not satisfied that FENZ breached any other duties that it owed to Mr Fry. Specifically: (a) There was no breach in relation to the failure to enrol Mr Fry into FireSuper in July 2022 - Mr Fry was not eligible to be enrolled and FENZ could not change that at the time as eligibility was determined by the FireSuper trust deed. (b) There was no breach by FENZ for alleged failures to remedy any breach by enrolling Mr Fry into Fire Super in 2024 - again FENZ could not do this. (c) There was no breach by FENZ for not re-enrolling TEP into FireSuper when he was removed from it in 2024 - again, FENZ had not ability to do this. (d) There was no breach by FENZ from February 2024 in terms of supporting Mr Fry in his work at FENZ particularly as that related to his working relationship with TEP. I am satisfied that FENZ did enough in terms of supporting Mr Fry through the attempts to engage the restorative process, providing welfare support and counselling, supporting his secondment, and supporting his return- to-work from secondment and sick leave - including asking Mr Fry directly what support or adjustments he wanted to assist him in his return to work. This is particularly so in context of Mr Fry's actual work conditions and the amount of interaction he would have had with TEP and what FENZ knew about the state of his working relationship with TEP. Was the FENZ failure to keep its promise sufficient to support constructive dismissal?

Mr Fry has a personal grievance for the unjustified action of FENZ - failing to keep its promise that TEP's identity would not be used to remove him from FireSuper - that caused a disadvantage to his employment.

As Mr Fry has been successful with one personal grievance for unjustified action causing disadvantage, I must turn to consider what remedies he may be entitled to in terms of those provided for under s 123 of the Act. Compensation

Compensation is awarded pursuant to s 123(1)(c)(i) of the Act; it is for the humiliation, loss of dignity and injury to feelings that an applicant suffers because of the unjustified actions of the employer.

When assessing compensation, I need to quantify the harm and loss caused by any humiliation, loss of dignity and injury to feelings arising out of FENZ's unjustified actions.5 I must consider the effect of the unjustified actions on Mr Fry and establish what that shows in terms of the harm caused to him and the loss he suffered as a result. I must then quantify the harm and loss; this is done by assessing Mr Fry's harm and loss against others who have been treated unjustifiably and establishing where that sits compared to the range of compensation awarded.6

Mr Fry is not entitled to any lost remuneration. Contribution

FENZ acted unjustifiably toward Mr Fry when it failed to keep its promise that if he provided TEP's name to it then TEP's name would not be used to have him removed from FireSuper. This unjustified action caused a disadvantage to Mr Fry's employment, and he has a personal grievance for this.

In settlement of Mr Fry's personal grievance for unjustified action, FENZ must pay Mr Fry $13,000 for compensation pursuant to s 123(1)(c)(i) of the Employment Relations Act 2000. Costs

Orders and payments mentioned

• Compensation: $13,000

Note: amounts are extracted from the wording around the orders. Check the PDF for full context (gross/net, tax, contribution, and deadlines).

Practical takeaways

• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.
• For trial periods, strict compliance with s 67B and the written agreement requirements is critical.
• Constructive dismissal turns on whether the employer's conduct effectively forced resignation.
• Unjustified disadvantage requires unjustified employer conduct and a real disadvantage (loss or detriment).
• Always read the orders section carefully: it is the authoritative list of payments, timeframes, and compliance steps.
• If penalties are sought, the evidence needs to support both breach and an appropriate penalty level.

Read the full ERA determination (embedded)

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