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OCO v ZUA [2025] NZERA 790 - Constructive dismissal upheld, $41,868.84 awarded (non-publication)

Unfair Dismissal Cases 36 Constructive Dismissal 6

In OCO v ZUA [2025] NZERA 790 (Christchurch), the ERA found a truck driver who resigned in November 2022 was constructively dismissed. The Authority found the employer's suspension decision was unfair and lacked proper grounds, the complaint investigation outcome was misleading, and the employer commenced a serious misconduct process without identifying complainants or detailing allegations. Those breaches were serious and it was reasonably foreseeable resignation might result. The ERA ordered $11,868.84 gross reimbursement and $30,000 compensation (total $41,868.84) payable within 28 days. A non-publication order protects the identities of both parties and the applicant's family.

Employee Case Review Compensation

This page summarises and displays the Employment Relations Authority (ERA) determination OCO v ZUA [2025] NZERA 790 (Christchurch). It is a detailed constructive dismissal decision involving an injured employee, ACC claim management, a workplace complaint, a suspension decision made without real input, and a disciplinary process started on allegations that were not properly particularised.

Non-publication: The ERA prohibited publication of the names and identifying details of the applicant, his wife and children, and the respondent. The ERA uses random three-letter identifiers (OCO and ZUA). This page follows the same approach.
Direct link to the full ERA determination (PDF): https://determinations.era.govt.nz/assets/elawpdf/2025/2025-NZERA-790.pdf

Quick facts

  • Citation: [2025] NZERA 790
  • ERA registry: Christchurch
  • Member: Philip Cheyne
  • Investigation meetings: 13 and 14 May 2025 and 13 June 2025 (Christchurch)
  • Date of determination: 5 December 2025
  • Case type: Constructive dismissal (resignation alleged to be caused by the employer)

What the ERA had to decide

  • Did OCO resign voluntarily, or was he constructively dismissed?
  • If constructive dismissal occurred, did the employer justify its actions under the s 103A "fair and reasonable employer" standard?
  • What remedies were required (reimbursement and compensation), and for what period?

Employment and injury context

ZUA employed OCO as a truck driver from late 2017. OCO suffered a left shoulder work injury in July 2020, followed by further medical treatment, surgery and additional injury events over time. The case includes extensive evidence about medical certificates, work restrictions, and ACC claim management.

ZUA was part of ACC's accredited employer programme and had responsibility for managing injury claims. ZUA also used external injury claim managers / consultants.

Key events leading to resignation (November 2022)

Workplace complaint: threats from a driver

On 5 November 2022 OCO emailed managers alleging he had been threatened by a driver in the yard and smoko-room, including alleged threats to assault him. He said another employee intervened to prevent an assault, and he said he complained to Police. ZUA promptly suspended the driver and investigated.

A key feature of the case is that some witnesses were unwilling to provide statements that could be shared with OCO, which shaped how ZUA closed the complaint.

Suspension of OCO: decision already made, and weak grounds

ZUA suspended OCO during the complaint investigation. The ERA found the decision to suspend had already been made by HR (or senior people), and OCO had no genuine opportunity to influence it. The ERA also found the reason given for suspension (alleged manipulation of the investigation) was not reasonably supported by the message evidence.

In short: the suspension was found to be unfair in both process (no real input) and substance (insufficient grounds).

Closure of complaint and start of disciplinary process

On 21 November 2022, ZUA wrote to OCO advising there was "not sufficient evidence" to sustain his complaint and that the investigation was closed. The ERA found the explanation given was misleading and unfair, because the investigation was actually closed because the investigator accepted what other staff members had told her.

The same letter raised disciplinary allegations against OCO (including alleged threats and alleged serious misconduct) but said the employer would not identify the complainants. A disciplinary meeting was set for 23 November 2022.

Resignation and constructive dismissal

OCO resigned by email on 22 November 2022. While the resignation email referred to injury and uncertainty about returning to driving, the ERA found the resignation occurred in a context that included:

  • the unfair way ZUA decided to suspend OCO, and the lack of proper grounds for suspension;
  • the unfair way ZUA concluded its investigation into OCO's complaint;
  • ZUA's decision to run a serious misconduct disciplinary investigation without identifying complainants or properly detailing allegations.
ERA finding: Those breaches were material factors in OCO's decision to resign, were sufficiently serious, and it was reasonably foreseeable a resignation might result. The ERA held OCO was constructively dismissed.

Remedies (what the ERA ordered)

Reimbursement (lost remuneration)

The ERA assessed OCO's ordinary time remuneration at $3,296.94 per fortnight (including hours worked, allowances and an ACC top-up), and compared it with what he received after employment ended via ACC earnings-related compensation while ZUA managed his claim.

  • Post-termination ACC payments (while ZUA managed the claim): $2,637.56 per fortnight
  • Net loss per fortnight: $659.38
  • Evidence covered: 18 fortnightly periods through to 31 March 2023
  • Reimbursement ordered: $11,868.84 (gross)

Why the period was limited

The ERA noted evidence of significant mental health events after termination (late December 2022, May 2023, June 2023), which could have affected ongoing earning capacity. On the evidence available, the ERA limited loss attributable to the personal grievance to 31 March 2023.

Compensation (humiliation, loss of dignity, injury to feelings)

The ERA accepted evidence from OCO, his wife, and support professionals about the emotional harm following termination (including trauma, financial stress and family impact). The ERA also emphasised compensation cannot be used as a backdoor for personal injury damages covered by ACC, and must be limited to harm properly attributable to the personal grievance.

  • Compensation ordered: $30,000.00 (upper range of the middle band)
  • Contribution: no reduction (no blameworthy contribution by OCO)
Total monetary orders: $11,868.84 + $30,000.00 = $41,868.84, payable within 28 days of the determination date.

Costs

Costs were reserved. If not agreed, the party seeking costs can file a memorandum within 28 days of the determination, with a reply due 14 days later.

Practical takeaways (constructive dismissal and investigations)

For employers

  • Do not predetermine suspension: if you propose suspension, give the employee a real opportunity to comment before deciding.
  • Have real grounds: suspension must be based on rational, defensible grounds supported by evidence.
  • Avoid misleading "closure" explanations: if you close a complaint because you accept witness accounts, say so (to the extent you can) and explain your reasoning fairly.
  • Particularise disciplinary allegations: if you are alleging serious misconduct, the employee must know the allegations in enough detail to respond.
  • Non-publication is not automatic: it requires a proper basis and evidence of adverse consequences.

For employees

  • Document the chain of events: constructive dismissal often turns on timeline and communications.
  • Ask for detail: if allegations are vague, request particulars and evidence before responding.
  • Get support: a support person or representative can help ensure fair process and accurate records.
  • Resignation is serious: if you feel forced to resign, get advice early so evidence is preserved and time limits are addressed.

Read the full determination

This is a public document hosted on the ERA determinations database (subject to the ERA non-publication orders). If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Open [2025] NZERA 790 (PDF)

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Need help with a constructive dismissal or ERA matter? If you are dealing with a personal grievance (PG), suspension issues, workplace investigations, or need representation in the ERA, we can help.

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