Rakai Tawhiwhirangi v Chief Executive of the Department of Corrections [2026] NZERA 402

This Employment Relations Authority (ERA) determination concerns the dismissal of Rakai Tawhiwhirangi, a Principal Corrections Officer who had used force against a prisoner in April 2021 and did not report the incident. Mr Tawhiwhirangi was later prosecuted for assault arising from the same event and acquitted after the District Court accepted self-defence. The Department of Corrections nevertheless conducted its own employment investigation, found the use of force unjustified and unreasonable, treated the matter as serious misconduct, and dismissed him in July 2024.

The ERA held that the dismissal was unjustified. Corrections said it would not reconsider the criminal finding, but its reasoning in fact revisited the same factual and legal questions and reached the opposite conclusions. It also failed to identify and assess the remaining policy concerns independently, retained a decision maker despite a material factual conflict, and took into account an issue that had not been raised as an allegation. Reinstatement was declined, but Corrections was ordered to pay $17,000 compensation and $19,882.50 gross lost wages after a 15 percent contribution reduction. Costs were reserved. The full determination is embedded at the end of this page.

Background: the 28 April 2021 incident

Mr Tawhiwhirangi was involved in receiving a prisoner into Arohata Prison on 28 April 2021. During the incident, he applied force to the prisoner's throat. He said the prisoner had been making noises suggesting she was about to spit at him, that she was known to spit, and that Covid-19 heightened the risk associated with being spat on.

The Department did not learn of the incident immediately through an incident report. It learned of it after receiving a later complaint. The Prison Director viewed the available CCTV footage, noted that no incident report had been filed, and commenced both an employment investigation and a process that led to a police prosecution.

Corrections alleged that Mr Tawhiwhirangi had used unjustified and/or unreasonable force and had failed to report the incident in accordance with the Prison Operations Manual. He was suspended while those matters were investigated.

The criminal charge and the District Court's self-defence finding

Mr Tawhiwhirangi was charged with common assault. The District Court viewed the CCTV footage several times and treated it as the best evidence of the physical events. The Court found that he believed the prisoner was about to spit at him, used force in self-defence, and acted reasonably in the circumstances as he believed them to be. He was found not guilty and the charge was dismissed.

That result did not automatically end Corrections' employment process. The Authority accepted that an employment investigation could legitimately consider other matters, particularly the failure to report the use of force and compliance with Corrections policies. But it created an important boundary: Corrections could not fairly say it was conducting a distinct employment inquiry while effectively re-deciding whether Mr Tawhiwhirangi's immediate use of force was lawful, justified and proportionate.

Corrections restarted the employment investigation

After the criminal case concluded, Corrections resumed its employment investigation. Mr Tawhiwhirangi was given an opportunity to view the CCTV footage, made a statement to the investigator, and later gave a "voice-over" explanation of what he said the footage showed.

Corrections maintained that the force was not an approved intervention, was dangerous and disproportionate, and that other options should have been considered. It also relied on the fact that no incident report, post-incident review, use-of-force record or other reporting steps had been completed.

The final decision treated the conduct as serious misconduct. Corrections dismissed Mr Tawhiwhirangi on notice, paying four weeks' salary in lieu of notice.

Why the Authority found Corrections had revisited the criminal case

Corrections had told Mr Tawhiwhirangi that the decision maker would not rely on the District Court judgment and that the employment investigation was not about whether he had acted unlawfully. However, the ERA found that the dismissal reasoning repeatedly returned to the same issues decided by the District Court.

The employment decision questioned whether the prisoner had made the relevant sounds, whether Mr Tawhiwhirangi had a reasonable belief she was about to spit, whether he was acting in self-defence, whether the force was proportionate, and whether his actions were lawful. Those were not peripheral matters. They were central to the District Court's self-defence analysis, which had reached the opposite conclusion.

The Authority held that the District Court's factual findings and conclusion that the force was justified and lawful placed real limits on what Corrections could fairly conclude. The Department could not characterise its process as materially distinct while its conclusion still depended on rejecting those findings.

The remaining policy issues were not properly analysed

The Authority accepted that the failure to report the use of force was a serious concern. Reporting would have triggered a range of safeguards, including a needs and medical assessment for the prisoner, staff debriefs, interviews, a post-incident review and entries in Corrections' reporting systems.

Mr Tawhiwhirangi accepted he did not make the required report. But the Authority found that Corrections did not clearly analyse the remaining policy breaches separately from its conclusion that the immediate use of force had been unlawful and disproportionate. It did not explain whether each separate issue was capable of amounting to serious misconduct, nor why dismissal was the appropriate outcome for those issues alone.

This was central to the fairness problem. A fair and reasonable employer had to assess the reporting and risk-management failures on their actual seriousness rather than treat them as inseparable from a conclusion that the force itself was unlawful—when the District Court had found it was not.

Decision-maker impartiality: a material conflict should have been avoided

A further problem was a factual conflict between Mr Tawhiwhirangi and the Prison Director, who remained the decision maker. Mr Tawhiwhirangi said she had directed him to assist with the prisoner in the Receiving Office. She denied doing so.

The Authority found that the disagreement could support Mr Tawhiwhirangi's explanation for why he was there and the difficult behaviour he was responding to. It also raised an unavoidable perception issue because only one account could be correct. Mr Tawhiwhirangi's representative asked that the Prison Director step aside; Corrections declined.

The Authority held that independence from a perception of bias is an important aspect of natural justice. In a large organisation such as Corrections, it was unwise to retain as decision maker a person directly involved in a material factual dispute relevant to the employee's case.

An additional concern was taken into account without being alleged

The decision maker also treated Mr Tawhiwhirangi's subsequent provision of atawhai, or comfort, to the prisoner as inappropriate. That was visible on CCTV footage, but it had never been framed as an allegation or put to him as a matter being investigated.

The Authority held that Corrections could not fairly take that conduct into account without first identifying it as a concern and giving Mr Tawhiwhirangi an opportunity to respond. It was another departure from the procedural requirements in section 103A of the Employment Relations Act 2000.

Finding: the dismissal was unjustified

The Authority concluded that Corrections faced several difficulties in justifying dismissal. It had said it would not take into account the District Court's conclusions but then reconsidered the same factual matters and reached the opposite view. It did not clearly set out what separate policy breaches it was actually deciding, did not properly assess whether they met the serious-misconduct threshold, retained a decision maker despite a direct material conflict, and relied on conduct that had not been put as an allegation.

The Authority therefore found Mr Tawhiwhirangi had been unjustifiably dismissed. Because that conclusion resolved the central grievance, it did not need to determine each additional disadvantage claim separately.

Reinstatement was declined

Mr Tawhiwhirangi sought reinstatement. The Authority accepted that reinstatement is the primary remedy and that the mere difficulty of reversing a dismissal is not enough to make it impracticable or unreasonable.

However, it held that reinstatement was not reasonable or practicable in this case. Relevant considerations included the approximately five-year absence from the workplace, significant changes to Corrections' operating approach and training for women in prison, the need for substantial upskilling, concerns about Mr Tawhiwhirangi's spontaneous comments during the investigation, and his failure to report the use of force.

Those matters did not validate the original dismissal process. But they were relevant to the forward-looking question of whether the employment relationship could successfully be reimposed.

Remedies: compensation and three months' lost wages, reduced for contribution

The Authority assessed compensation for humiliation, loss of dignity and injury to feelings at $20,000 before contribution. It accepted that the long suspension and eventual dismissal had a substantial personal impact on Mr Tawhiwhirangi, including distress, loss of confidence, financial pressure and harm to his sense of identity after a lengthy career.

It also ordered the statutory maximum of three months' ordinary time remuneration, calculated at $23,320.50 before contribution. A claim for loss of monetary benefits was withdrawn because retirement leave had been paid on the termination of employment.

The Authority then made a 15 percent reduction across both remedies. It found that although the spontaneous use of force was lawful, Mr Tawhiwhirangi had contributed significantly to the situation by failing to assess and plan for the known risk, failing to consider alternatives short of confrontation, and failing to report the use of force as required by policy.

Why this case matters

Tawhiwhirangi v Chief Executive of the Department of Corrections is a detailed example of the limits on an employer's ability to proceed disciplinarily after an employee has been acquitted in a criminal court. The employment process may have a different purpose and can address obligations the criminal case did not determine. But the employer must identify those distinct issues with precision and assess them fairly.

The decision is also a reminder that procedural fairness involves more than providing meetings and letters. The decision maker must be sufficiently independent, the employee must know every materially adverse concern that may be relied on, and the employer must explain how any proven policy breach is serious enough to justify the outcome imposed.

Practical takeaways

• Do not re-litigate a criminal judgment by another name: distinguish genuinely separate workplace obligations from factual findings already determined in a criminal proceeding.
• Identify the remaining allegations precisely: say which policy obligations are said to be breached and how each alleged breach could amount to misconduct or serious misconduct.
• Analyse policy breaches independently: do not rely on a conclusion that conduct was unlawful or disproportionate where that conclusion is unavailable or inconsistent with a court's finding.
• Use an impartial decision maker: where a decision maker is involved in a material factual dispute, a large employer should generally appoint someone else.
• Put every adverse issue to the employee: even conduct visible in CCTV footage cannot fairly be relied on if it was never framed as an allegation or concern for response.
• Separate dismissal fairness from reinstatement: later circumstances, workplace changes and the prospect of successful reintegration can make reinstatement impracticable even after an unjustified dismissal finding.
• Contribution can apply despite an unjustified dismissal: employee conduct that helped create the underlying situation may reduce compensation and lost wages, even where the employer's investigation and dismissal were unfair.

Read the full ERA determination (embedded)

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