OAS v JIK Limited [2026] NZERA 474

This Employment Relations Authority (ERA) determination concerns an anonymised chef who was left off the roster after telling his employer that he needed time away from work because of a family violence situation involving his children. JIK treated the employee's messages as a resignation or abandonment of employment. The Authority disagreed. OAS had not resigned, had not abandoned his employment, and was entitled to family violence leave. JIK's decision not to put him on the next roster was a dismissal, and that dismissal was unjustified. After a 10 percent reduction for contribution, JIK was ordered to pay $13,500 compensation and $7,920 gross lost wages. The full determination is embedded at the end of this page.

Background

OAS worked for JIK as a chef in a hospitality business in Auckland. His written employment agreement contained a family violence leave clause. That clause provided for up to 10 days' paid family violence leave after six months' continuous employment and allowed the employer to require satisfactory documentary evidence.

Rosters were circulated through a messenger group chat. JIK operated with lean staffing, so missed shifts caused operational pressure for other workers. JIK's witnesses said OAS had a poor attendance record and that absences had caused difficulty, although no disciplinary action had been taken about those issues before the employment ended.

In early February 2024, OAS took time away from work after his dog died. He had asked for leave, JIK declined it for operational reasons, and OAS took the time off anyway. That absence became relevant later because JIK's reaction to the family violence situation was coloured by frustration about earlier attendance problems.

The family violence situation

On 10 February 2024 there was a confrontation involving OAS's current and former partner, which OAS described as an assault. Police were called. OAS later said he collected his children from his ex-partner's house because he was concerned for their safety and took them to safer temporary accommodation. Police were again involved and OAS was allocated a victim support worker.

On Monday 12 February 2024, OAS did not attend work. His line manager messaged him asking where he was. OAS replied that he had to take his children and leave, that their mother was unstable, that he needed to make urgent calls about custody and safety, and that he might need to resign if he could not get the time away from work.

The message was escalated to JIK's owner, PVK. The following day OAS explained that he had an urgent family situation, had to move with his children to temporary accommodation, needed time to keep them safe, and needed to get a protection order. He also said he was happy to return to work and offered to provide details for his victim support worker.

JIK treated the messages as resignation or abandonment

PVK responded by focusing on whether OAS had resigned and whether he would be coming back. Rather than asking further questions about OAS's wellbeing, the family violence issue, or the evidence OAS offered to provide, PVK asserted that OAS had resigned without notice or abandoned shifts.

OAS expressly said he had not abandoned his employment. He said he had kept JIK informed and would return the following week if rostered. PVK then said OAS was to turn up the next day or his resignation would be accepted. OAS replied that he could not attend because he had to meet his victim support adviser and file court documents, but that he would return the following week if he was on the roster.

On 16 February 2024, the next roster was circulated. OAS was not listed for any shifts. He said that was when he understood JIK did not want him to return.

The Authority found OAS had not resigned

The Authority held that OAS's communications, considered as a whole, could not properly be read as resignation. His messages were written in the middle of an urgent family situation. He had said he would be happy to come back, had offered to provide proof, and had expressly stated that he had not abandoned his employment.

The Authority found that PVK's purported acceptance of resignation was likely driven by frustration about earlier attendance issues. But that approach failed to have proper regard to OAS's entitlement to family violence leave.

Not rostering OAS was a dismissal

JIK argued that OAS resigned or abandoned his employment. The Authority rejected that position. OAS was not offered further work despite saying he was willing to work. The employment ended at JIK's initiative when it did not put him on the next roster.

The Authority therefore found that JIK dismissed OAS. The likely reason was that JIK was frustrated that OAS had missed work again.

Why the dismissal was unjustified

OAS told JIK that he needed time away from work to keep his children safe and deal with urgent family violence-related matters. JIK did not ask proper questions about the situation, did not inquire into what was going on, and did not seek the supporting documents OAS offered to provide.

The Authority held that OAS was entitled to family violence leave in the week of 12 February 2024. JIK's failure to engage further about the family violence circumstances, and its decision to dismiss him for missing work when he was entitled to be away, were not actions a fair and reasonable employer could have taken. OAS had therefore established an unjustified dismissal.

Good faith breach, but no penalty

The Authority found JIK also breached the duty of good faith. Failing to properly engage with an employee about family violence issues likely to affect their ability to work is not active and constructive communication. Instead, JIK took an unfavourable view of OAS's messages and treated them as resignation despite him saying he was willing to return.

However, no penalty was imposed. The Authority accepted that JIK was genuinely frustrated by attendance problems and the pressure on other workers. Its conduct was not found to be serious, sustained and deliberate, or intended to undermine the employment relationship.

Remedies

OAS sought compensation and lost wages. JIK argued that the 2026 amendments concerning misconduct, serious misconduct and remedies should apply. The Authority rejected that argument because OAS had lodged his claim before the amendments came into force. The pre-amendment law applied.

For compensation, OAS gave evidence that JIK's lack of interest in his circumstances and failure to ask after his wellbeing were upsetting and humiliating. He said his mental health suffered after dismissal, he became depressed, he had difficulty sleeping, and losing the role took away a sense of purpose and independence.

The Authority accepted that compensation was warranted but recognised that other factors, including the family situation itself, also affected OAS's wellbeing. Compensation was assessed at $15,000 before contribution.

For lost wages, OAS claimed 13 weeks at 40 hours per week. The Authority instead awarded eight weeks' wages. It considered that OAS had made limited mitigation efforts, had only worked for JIK for just over six months, had not been consistently reliable, and that his attendance pattern was likely to have continued. Eight weeks was assessed as likely representing his actual loss in the circumstances.

Contribution

The Authority reduced remedies by 10 percent for contribution. That reduction was based on OAS's unauthorised absence the week before the family violence leave issue, after his dog had died. JIK's unjustified response to the family violence situation occurred in a context informed by that earlier blameworthy non-attendance.

However, the Authority said OAS's contribution was not significant when compared with JIK's failure to comply with the employment agreement and Holidays Act family violence leave provisions. A 10 percent reduction was therefore just.

Why this case matters

OAS v JIK Limited is a direct reminder that family violence leave is a real employment entitlement, not a discretionary favour. When an employee raises circumstances that clearly point to family violence, the employer must slow down, ask appropriate questions, consider the statutory and contractual leave position, and avoid treating urgent or emotional wording as a resignation unless that is objectively clear.

The case also shows the danger of allowing frustration about past attendance issues to take over the analysis. JIK may have had legitimate operational concerns about absenteeism, but those concerns did not justify dismissing an employee for absence during a period when he was entitled to family violence leave.

Practical takeaways

• Do not seize on loose resignation language: messages sent during a crisis must be read as a whole and in context.
• Family violence leave must be considered: employers should check statutory and contractual obligations before acting on absence connected with family violence.
• Ask proper questions: if an employee offers supporting information or a victim support contact, the employer should engage with that information.
• Leaving an employee off the roster can be dismissal: where the employer initiates the end of work, it may be a dismissal even without a termination letter.
• Good faith requires active communication: treating a family violence situation as ordinary absenteeism can breach the duty of good faith.
• Past absenteeism may affect remedies: OAS still won, but his earlier unauthorised absence led to a 10 percent contribution reduction.

Read the full ERA determination (embedded)

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