Prasath Balachandariyar v Civtec Limited [2026] NZERA 302

This case is a strong example of how a redundancy can be genuine in business terms but still fail the Employment Relations Act 2000 test because the employer applies the selection criteria unfairly. Civtec Limited reduced its Christchurch workforce after a decline in work and customer demand. The Employment Relations Authority (ERA) accepted the commercial rationale and accepted that the consultation process was procedurally fair. The problem was the scoring. Prasath Balachandariyar was marked down for matters connected to his bronchial asthma, a temporary workplace wrist injury, a Record of Conversation that should not have counted against him, and sick leave that may have related to the injury. The ERA found he was unjustifiably dismissed and unjustifiably disadvantaged. The full determination is embedded at the end of this page.

Background

In January 2023, Mr Balachandariyar interviewed for a Fibre Technician position with Civtec. He said he disclosed that he had bronchial asthma and could not perform underfloor or ceiling work. Civtec did not recall that disclosure. The point was contested, but it did not ultimately decide the case. Mr Balachandariyar accepted the role and started work on 23 January 2023.

The asthma issue became more concrete in May 2023. Mr Balachandariyar was concerned that operational changes might separate him from the colleague who had been performing the underfloor and ceiling work. He emailed Civtec explaining that he could not perform those duties because of bronchial asthma. He said he was then reassured that the work allocation would not require him to do that work, and for about 11 months he continued working without that issue becoming a live problem.

In April 2024, Mr Balachandariyar suffered a workplace wrist injury while drilling at a customer site. Civtec referred him to physiotherapy and later hand therapy. He continued working full-time while the injury was being managed. The physiotherapy and hand therapy records later became important because they showed restrictions on twisting, lifting, crawling, working at heights, and underfloor work.

The asthma issue returned when the work changed

In May 2024, Civtec told Mr Balachandariyar he would be working with another technician. Mr Balachandariyar understood that this would require him to perform underfloor and ceiling work. He again raised his bronchial asthma and provided a medical certificate stating that he was unable to tolerate underground working conditions or ceiling work due to a dust allergy.

Civtec then obtained further medical information from his GP. The GP confirmed a long history of asthma, said he should avoid dust exposure, and noted that masks might help but could still trigger asthma flares. The GP also suggested an occupational medicine specialist referral if Civtec needed further information.

Civtec explored mask options and asked Mr Balachandariyar to consult his GP about them. He was initially reluctant because of a previous serious asthma attack despite mask use, but he agreed to investigate the options. His GP referred him toward occupational health and explained that mask-fit testing was generally an occupational health matter for the workplace to organise.

That is where Civtec's case ran into difficulty. The ERA found that Mr Balachandariyar had done what was asked of him about mask options. Civtec was ultimately responsible for progressing the occupational health or mask-fit testing process, but did not do so. It could not then use the absence of a mask solution as a reason to mark him down.

The wrist injury was not just a background issue

The wrist injury also mattered. The 8 May 2024 physiotherapy report said Mr Balachandariyar could not complete aspects of the Fibre Technician role and should avoid certain duties. He was not to lift and shift loads up to 25kg, operate vibrating hand tools for prolonged periods, or climb ladders and work at heights. He was also to avoid right-hand twisting, turning and lifting.

Civtec had some creditable evidence. It referred him to treatment, paid for physiotherapy and hand therapy, sought updates from health professionals, and paid him for time spent attending appointments. It also formally modified his duties from 22 August 2024 after the hand therapist became concerned about tasks that were aggravating the injury.

But the ERA found that was not enough. The hand therapist had said the ongoing performance of tasks such as wire stripping and using a screwdriver was aggravating tissue and delaying recovery. The formal modification of duties came late. Civtec did not provide evidence of an agreed plan, regular check-ins, or a structured process that clearly allocated safe duties. Much of the practical avoidance of aggravating tasks appeared to come from Mr Balachandariyar's own initiative rather than from Civtec implementing a proper return-to-work plan.

The restructure

In September 2024, Civtec began a restructure process in Christchurch. The business proposed reducing 92 roles to 68. The proposal included disestablishing 10 Fibre Build Technician roles, 61 Fibre Technician roles and four Junior Fibre Technician roles, and creating 50 Fibre Technician and 10 Fibre Civil Technician roles.

The reason for the restructure was a significant decline in connection numbers and build/project work from Civtec's two major clients, along with increased tender competition and fewer successful project bids. Civtec said it had tried other measures such as not replacing roles, limiting overtime and Saturday work, and improving efficiencies, but still considered the business over-resourced.

The new Fibre Technician roles were broader than the existing Fibre Technician role. The new job description expressly included work underfloor, in ceiling and within small confined spaces, along with ladders, crouching, kneeling, squatting, lifting, above-head work and working on the back. That was significant because those were the kinds of duties affected by Mr Balachandariyar's asthma and wrist injury.

Mr Balachandariyar was considered for both the Fibre Technician and Fibre Civil Technician roles. Civtec used nine selection criteria with scores from zero to three, for a maximum possible score of 27. He initially scored 13/27 and, after one adjustment, 14/27. That was too low for either of the roles he wanted. He was given two weeks' notice of termination for redundancy.

The ERA accepted the process, but not the scoring

This is the important distinction in the case. The ERA did not reject the restructure as fake. It accepted the restructure rationale was genuine and justified. It also found the restructure process was procedurally fair: Civtec issued a proposal, consulted on it, consulted on the scores, and genuinely considered feedback.

The dismissal failed because the selection scoring was not substantively justified. A redundancy process does not become safe just because there is a genuine business reason. Where employees are competing for roles in a new structure, the employer still needs to apply the criteria fairly, objectively and consistently.

Criterion 9: physical aspects of the role

Mr Balachandariyar received zero out of three for completing physical aspects of the role. The parties accepted this was because of his bronchial asthma limiting his ability to undertake tasks such as work in ceiling or underfloor spaces, or civil tasks involving asphalt.

The ERA found that a zero score was not justifiable. Even if Mr Balachandariyar had not disclosed asthma at the original job interview, he had disclosed it a few months later and Civtec had accommodated it for about a year. Civtec's obligation to reasonably accommodate the condition arose once it was disclosed.

The real question was not simply whether asthma limited some duties. The question was whether, after reasonable accommodation or risk mitigation, those limitations would still prevent him performing the physical aspects of the new role. Civtec had not completed that assessment because it had not progressed the occupational health or mask-fit testing process.

The ERA found it was premature and unjustified to give a zero score. A zero might have been open if Mr Balachandariyar had refused to explore masks, or if an appropriate mask had been tried and still did not work. That was not what happened. Civtec had not taken the necessary next steps, then treated the unresolved issue against him.

Criterion 8: key functional tasks

Criterion 8 was about completing all key functional tasks of the role. The wording was ambiguous: it could have been about technical expertise, physical capacity, or both. Civtec's CEO gave evidence that the criterion was about technical know-how, but the written response to Mr Balachandariyar's feedback told a different story.

Civtec's 21 October 2024 letter referred to him being unable to work underfloor and in ceiling spaces, work around asphalt due to fumes, and perform certain tasks because of the wrist injury. The ERA found Civtec was predominantly influenced by the asthma and wrist injury when applying this criterion.

That was unfair for two reasons. First, the asthma issue had not been properly assessed against reasonable accommodation and mask use. Second, the wrist injury was temporary. Mr Balachandariyar had been discharged from hand therapy by the time of the final decision, subject to slowly reintroducing civil work over the next month. A forward-looking role selection process should not have treated a temporary recovering wrist injury as though it justified a long-term reduction in suitability.

Criterion 4: Record of Conversation

Civtec also marked Mr Balachandariyar down because of a Record of Conversation. One alleged Record of Conversation, dated 20 March 2024, was accepted to be wrong and was removed from consideration. The remaining issue was a 6 August 2024 Record of Conversation about Mr Balachandariyar proactively sending feedback links to customers rather than allowing the automatic customer feedback system to operate.

The ERA found the August Record of Conversation should not have counted against him. The meeting began and ended positively, with praise for customer feedback and comments that he was doing a great job. Mr Upchurch did tell him not to send customer feedback links, but there was no evidence that he had previously been told this was unacceptable. There was also no policy identified prohibiting him from sending the links.

It was therefore unfair to treat a first conversation about the issue as a formal Record of Conversation that could later damage his selection score. The ERA considered the issuing of that Record of Conversation premature, particularly because it later materially affected whether he kept his job.

Criterion 3: sick leave

The ERA also addressed the attendance criterion. Mr Balachandariyar had taken three days' unpaid sick leave beyond his statutory entitlement. Initially that was treated as unjustified sick leave, but it was later changed to justified without a proper explanation.

The Authority considered that if the three days related to the workplace wrist injury, it was not justified to mark him down for them. The absences were close in time to the injury and were likely connected. A selection process is meant to be forward-looking. Previous absences due to a temporary work-related injury from which the employee has recovered should not affect suitability for a future role.

Why the dismissal was unjustified

The ERA pulled the threads together and found the dismissal unjustified. The restructure selection process effectively became a backdoor medical incapacity process. Up to three of the four disputed selection criteria had been unfairly influenced by Mr Balachandariyar's bronchial asthma and temporary workplace wrist injury.

If an employer believes a medical condition or injury has a long-term impact on the employee's ability to work, that should be dealt with through a proper medical incapacity process. It should not be smuggled into a redundancy selection score without completing the medical and accommodation work first.

The numbers mattered. Mr Balachandariyar's final score was 14/27. Had the four disputed criteria been assessed properly, he could have received up to another nine points, taking him to 23. The lowest successful candidates scored 18 for Fibre Technician and 21 for Fibre Civil Technician. On that analysis, he could have expected to be offered both positions.

The unjustified disadvantage finding

Mr Balachandariyar also succeeded on unjustified disadvantage arising from the handling of his wrist injury. This was not because Civtec did nothing. The ERA recognised Civtec paid for treatment, sought updates, remunerated appointment time and eventually modified duties.

But Civtec did not adequately consult him after the physiotherapy assessment. There was no evidence of a manager or team leader collaborating with him to set a clear plan for avoiding tasks that could aggravate the injury. There was no evidence of regular check-ins or proper monitoring. Civtec also failed to comply with its own injury management requirements and the signed 16 May 2024 document requiring it to follow the physiotherapy or GP recommendations and ensure allocated work matched restrictions.

The practical result was that Mr Balachandariyar continued doing tasks that should have been avoided or controlled. The hand therapist later confirmed the ongoing twisting-type tasks were aggravating tissue and interrupting healing. The ERA found Civtec had fallen short of its obligation to properly support his recovery.

Remedies

Mr Balachandariyar obtained both dismissal remedies and a separate compensation award for the unjustified disadvantage.

For lost wages, the ERA awarded three months' ordinary time remuneration under ss 123 and 128. Mr Balachandariyar's actual loss was higher, and he mitigated by promptly securing work as an Uber driver. However, the ERA declined to award more than the statutory three-month amount because he had not applied for comparable roles outside Christchurch that he considered suitable.

His ordinary hours were 40 per week at $27.95 per hour. Thirteen weeks at that rate produced a gross lost wages award of $14,534.

For humiliation, loss of dignity and injury to feelings from the unjustified dismissal, the ERA awarded $20,000. Mr Balachandariyar described distress, emotional strain and career impact, particularly because he had developed specialist skills and believed there were limited local opportunities to use them. There was no medical evidence of the impact, but the ERA accepted he had suffered a moderate level of non-economic loss.

For the unjustified disadvantage connected with the wrist injury, the ERA awarded a further $3,000. That was assessed as a low-level loss of dignity and injury to feelings.

The ERA considered contribution under s 124 and found there was no contributory conduct by Mr Balachandariyar. No reduction was made.

Why this case matters

This determination is useful for redundancy cases because it shows that a genuine business case is not the end of the analysis. Civtec won the first half of the argument: the business rationale was genuine, and the process was broadly fair. It lost on the second half: the actual selection scoring was unfair and affected the outcome.

The case is also a warning about medical issues inside redundancy processes. An employer cannot simply mark an employee down because a medical condition limits some duties if reasonable accommodation or risk mitigation has not been properly assessed. If medical incapacity is the real issue, it should be handled directly through a proper incapacity process, not indirectly through redundancy scoring.

Finally, the decision is a reminder that workplace injuries need active management. Paying for treatment is not enough by itself. The employer should translate medical restrictions into actual work instructions, safe duties, communication with managers, check-ins, and documented monitoring. Otherwise the employee may be left to manage risk alone while still being expected to get the work done.

Practical takeaways

• Genuine redundancy is not enough: the selection process must still be fair and the scoring must be substantively justified.
• Do not use redundancy as incapacity by the back door: long-term medical limitations should be assessed through a proper medical incapacity process.
• Reasonable accommodation matters: before marking an employee down for a medical limitation, the employer should complete the accommodation and risk assessment work.
• Temporary injuries are different from permanent incapacity: a recovering workplace injury should not be treated as a long-term inability to perform a future role.
• Records of Conversation can have consequences: if they are going to affect selection scoring, they need to be fairly issued and properly communicated.
• Sick leave needs context: absences connected with a temporary work-related injury may be a poor basis for reducing a selection score.
• Return-to-work support must be practical: medical restrictions need to be converted into actual modified duties, manager instructions and regular check-ins.
• No contribution reduction is automatic: even where an employee has made inaccurate statements or imperfect choices, the question is whether their conduct contributed to the grievance.

Read the full ERA determination (embedded)

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