Qi Sun v Keene Construction Limited [2026] NZERA 465

This Employment Relations Authority (ERA) determination concerns Qi Sun, an apprentice builder employed by Keene Construction Limited. After Mr Sun queried an unpaid apprenticeship-cost payment, the company's director sent text messages saying there was not going to be a company anymore and telling him not to bother coming into work. The Authority found that it was reasonable for Mr Sun to understand that he had been dismissed, and that Keene Construction did not justify that dismissal. The respondent filed no Statement in Reply, provided no evidence, did not attend the investigation meeting, and did not engage meaningfully with the Authority process. The full determination is embedded at the end of this page.

Background

Mr Sun came to New Zealand from China in 2002 and later undertook training as a builder. He saw a sign saying Keene Construction was looking for workers, called Jeremy Smith, the company's owner and director, and after a brief trial was offered employment. He worked for Keene Construction from June 2023 until his employment ended in October 2024.

Mr Sun was still completing his building apprenticeship when he began work. Mr Smith agreed that Keene Construction would pay Mr Sun's remaining apprenticeship costs. In September 2024, however, Keene Construction did not pay a $300 apprenticeship-cost amount. Mr Sun emailed Mr Smith about the payment and followed up, but the amount was not paid and Mr Sun paid it himself.

The text messages

On 3 October 2024, Mr Sun sent Mr Smith a text about the outstanding training costs. Mr Smith responded by text, referring to the company potentially going under and losing money. Mr Sun replied that he was still employed and that Keene Construction had an obligation to make the agreed payment.

Mr Smith then sent messages to the effect that there was not going to be a company anymore, so Mr Sun should not bother coming into work. When Mr Sun said he was still employed, Mr Smith again told him not to bother coming into work. Mr Sun asked whether he had been terminated and raised notice or compensation, but Mr Smith did not respond to clarify the position.

The employer later tried to recast what happened

On 8 October 2024, Mr Sun received a further text from Mr Smith asking why he was not at work and saying he had only been told not to attend on Friday 4 October. Mr Sun replied that he had not attended because Mr Smith had fired him. On 10 October 2024, Mr Smith again contacted Mr Sun, asserted that because of his non-attendance he assumed Mr Sun would not be returning, and asked for company property to be returned.

Mr Smith later alleged that Mr Sun had chosen not to show up because he had signed on with another company. No evidence was presented to support that allegation. Mr Sun's position was that he could not return to work after he had been fired.

The respondent did not participate

Keene Construction did not file a Statement in Reply. It provided no witnesses and no information to the Authority. It also did not attend the investigation meeting. The Authority was satisfied that reasonable efforts had been made to notify Keene Construction of the proceedings and the investigation meeting, including service to its registered address and an email address supplied from the applicant's documentation.

At the scheduled start time, no one appeared for the respondent. The Authority waited 15 minutes and also attempted to contact Mr Smith by mobile phone. A voicemail was left explaining that the investigation was proceeding and that a determination would be issued. The matter then proceeded by way of formal proof.

Was Mr Sun dismissed?

The Authority accepted Mr Sun's evidence. It found that it was a reasonable assumption for Mr Sun to have concluded from the text messages that his employment had been terminated. An employer may say that it did not intend to dismiss an employee, but language or conduct can still amount to a sending away. The assessment is objective and depends on the words used and the circumstances in which they were used.

The Authority referred to the Employment Court's approach in Cornish Truck & Van Limited v Gildenhuys, where the question was whether it was reasonable for someone in the employee's position to consider their employment had been terminated. On the facts, Mr Smith's messages and lack of clarification made it reasonable for Mr Sun to conclude that he had been dismissed.

Why the dismissal was unjustified

There was no evidence from Keene Construction to satisfy the statutory requirements in s 103A of the Employment Relations Act 2000. There was no evidence of an investigation, no evidence that concerns were fairly raised, no evidence that Mr Sun was given a reasonable opportunity to respond, and no evidence that any explanation from him was genuinely considered.

The Authority found that Mr Sun was dismissed by Mr Smith's text messages on 3 October 2024. If Keene Construction had not intended to end the employment relationship, Mr Smith had an opportunity to clarify that position when Mr Sun explicitly asked about his employment status. He did not do so. The dismissal was both procedurally and substantively unjustified.

Lost wages

Mr Sun sought reimbursement of wages lost because of the dismissal. The Authority accepted that he took proactive steps to minimise his loss. He applied for work by directly approaching builders and building sites and later started his own building company in March 2025. His total earnings after leaving Keene Construction were $2,834.13 gross.

The Authority noted that, although the company may have been in difficulty, Mr Smith's later attempt to ask Mr Sun back to work indicated that work remained available at least for a time. Based on Mr Sun's $48 hourly rate and 32-hour week, the Authority awarded $14,061.87 gross for 11 weeks' lost wages after deducting the earnings he had received after his employment ended.

Compensation

Mr Sun gave evidence that losing his job was very upsetting and caused significant distress. He had a family, found it impossible to survive on a single income, and had to borrow money from friends and wider family. The Authority accepted his evidence of impact, particularly given the lack of information provided by Mr Smith.

Compensation for humiliation, loss of dignity and injury to feelings was assessed at $15,000. There was no contribution reduction. The Authority found there was no evidence that Mr Sun contributed to the circumstances giving rise to the personal grievance; on the contrary, he had actively sought clarification from Mr Smith about his employment status.

Wage and holiday pay arrears

Mr Sun also claimed wage arrears and holiday pay. He argued that his $48 hourly rate, confirmed in August 2024, had been agreed to be backdated to 1 April 2024. The Authority was not persuaded that there had been an agreement to backdate the increase.

However, Mr Sun succeeded on final-week wages, two weeks' contractual notice, and unpaid annual holidays shown on his final payslip. The Authority calculated 153.28 hours at $48 per hour, comprising 32 hours for the final week, 64 hours for notice, and 57.28 hours for 1.79 weeks of annual holidays. That came to $7,357.44 gross, plus $588.60 in 8 percent holiday pay.

Costs

Mr Sun was legally aided. Because Keene Construction had not engaged meaningfully and had not appeared, counsel for Mr Sun asked the Authority to make a costs order. The investigation meeting lasted less than half a day. Applying the Authority's daily tariff approach and taking account of complexity, the Authority ordered Keene Construction to pay $2,000 as a contribution to costs.

Why this case matters

Sun v Keene Construction Limited is a useful reminder that dismissal can occur through informal language, including text messages. The employer's later attempt to recast the exchange did not undo the legal effect of what had been communicated at the time. Where an employee reasonably understands they have been sent away permanently, and the employer fails to clarify the position when asked, the Authority may find that a dismissal has occurred.

The case also illustrates the risk of not participating in the Authority process. Keene Construction did not put forward evidence to contest Mr Sun's account or to justify any dismissal decision. The Authority still had to be satisfied on the evidence, but the matter proceeded on formal proof and there was no employer evidence capable of answering Mr Sun's case.

Finally, the determination shows that ordinary contractual entitlements such as final-week wages, notice and annual holidays can be dealt with alongside a personal grievance. The dismissal finding produced lost wages and compensation, while the final pay issues produced separate arrears orders.

Practical takeaways

• Text messages can dismiss: informal words may still objectively communicate termination.
• Clarify immediately: if the employer does not intend dismissal, it should say so clearly when the employee asks.
• Process still matters: commercial difficulty does not remove the need for a fair process before dismissal or redundancy.
• Respond to the Authority: failing to file, provide evidence or attend creates obvious forensic risk.
• Mitigation evidence helps: evidence of job-search efforts supported Mr Sun's lost-wages claim.
• Final pay is separate: notice, final wages and annual holidays remain enforceable even where lost wages are also awarded.

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.