RESINK v EMPLOYMENT SERVICES LIMITED [2025] NZERA 104

This page summarises and embeds an Employment Relations Authority (ERA) determination. It is not legal advice.

Story in plain English

A costs determination was made.

In summary, Alternatively, Mr Resink says that he was unjustifiably constructively dismissed because either ES breached a duty to him that was serious enough that ES ought to have foreseen he would resign; or alternatively there was a course of conduct aimed at getting him to resign. After that, ES denies the claims and says that any investigation process it began was reasonable for it to do which it says could not conclude because Mr Resink went on sick leave and then by his own choice resigned. Later, I sought further information after the investigation meeting and received this on 22 November 2024 being a final payslip from ES and confirmation from Mr Resink that he agreed that the employer entity was ES. The determination records that If not a 'sending away' dismissal as above, was Mr Resink in the alternative constructively dismissed as a result of either a breach of his terms of employment so serious that ES ought to have foreseen a resignation, or a course of conduct intended to have him resign? The Authority notes that Further background Invitation to a disciplinary meeting and information provided about what was alleged [13] On 27 April 2023 at 2.25pm Mr Resink was invited by ES to a 'disciplinary meeting' scheduled for the next day at 3.00pm. Ultimately, Emails eventually produced by ES by the time of the investigation meeting show that Mr Resink did respond in email to Ms Jones saying he tried to place AB in the industry that he had been 'let go' from and this was not successful. In the end, I did not hear from Ms Jones, but The Authority found generally that the notes are likely the closest representation of what was discussed at the meeting that I have.

Key events described

• Alternatively, Mr Resink says that he was unjustifiably constructively dismissed because either ES breached a duty to him that was serious enough that ES ought to have foreseen he would resign; or alternatively there was a course of conduct aimed at getting him to resign.
• ES denies the claims and says that any investigation process it began was reasonable for it to do which it says could not conclude because Mr Resink went on sick leave and then by his own choice resigned.
• I sought further information after the investigation meeting and received this on 22 November 2024 being a final payslip from ES and confirmation from Mr Resink that he agreed that the employer entity was ES.
• If not a 'sending away' dismissal as above, was Mr Resink in the alternative constructively dismissed as a result of either a breach of his terms of employment so serious that ES ought to have foreseen a resignation, or a course of conduct intended to have him resign?
• Further background Invitation to a disciplinary meeting and information provided about what was alleged [13] On 27 April 2023 at 2.25pm Mr Resink was invited by ES to a 'disciplinary meeting' scheduled for the next day at 3.00pm.
• Emails eventually produced by ES by the time of the investigation meeting show that Mr Resink did respond in email to Ms Jones saying he tried to place AB in the industry that he had been 'let go' from and this was not successful.
• I did not hear from Ms Jones, but The Authority found generally that the notes are likely the closest representation of what was discussed at the meeting that I have.
• The Authority found this lack of discussion recorded is likely given that ES's position, until these emails came to light during the investigation meeting, was that Mr Resink simply did not respond to Ms Jones after the 9.30am email that she sent to him, hence the allegation about Mr Resink not obeying a 'lawful command'.
• During the representative communications ES maintained its position that it had been clear about what was being investigated at the 28 April 2023 meeting.
• On 21 May 2023 through his representative, Mr Resink communicated that ES's continued 'vague allegations' were damaging the employment relationship further and that he was unlikely to improve his health while ES 'held over his head' an investigation into unspecified serious allegations.
• The Authority found it not a stretch by this stage that Mr Resink would have considered the relationship of trust and confidence had irretrievably broken down, that this was the 'last straw'. 13 Email Paul Mathews to Paul Brown dated 9 May 2024.
• The Authority found that it was reasonably foreseeable for ES to have concluded that Mr Resink would resign due to the seriousness of the ongoing breach of its duty of good faith to him.

Decision markers

• The Authority found it not a stretch by this stage that Mr Resink would have considered the relationship of trust and confidence had irretrievably broken down, that this was the 'last straw'. 13 Email Paul Mathews to Paul Brown dated 9 May 2024.
• The Authority found that it was reasonably foreseeable for ES to have concluded that Mr Resink would resign due to the seriousness of the ongoing breach of its duty of good faith to him.
• To that end The Authority was satisfied that the grievance contributed and award $15,000.00 to Mr Resink under section 123(1)(c)(i) of the Act.
• The Authority found an appropriate award for lost earnings taking into account attempts to get further employment is the three months claimed under s128 of the Act being $17,500.08 gross.

Note: figures above are extracted from the orders section (or the final orders wording). Check the PDF for full context and any gross/net directions.

Practical takeaways

• Constructive dismissal turns on whether the employer's conduct forced resignation in substance.
• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.

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