Robert Tunnicliffe v Solly'S Freight (1978) Limited [2026] NZERA 91

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination. The full determination is embedded at the end of this page.

What happened

On 5 February 2024, Robert Tunnicliffe interviewed for a job as a Truck Driver with Solly's Freight (1978) Limited (Solly's). Solly's offered Mr Tunnicliffe the job, which he accepted and commenced on 12 February 2024.

On 28 February 2024, following a court hearing, Mr Tunnicliffe was disqualified from driving, by reason of drink driving. Unable to perform the duties of his role, Solly's provided Mr Tunnicliffe with alternative duties.

On 24 April 2024, Mr Tunnicliffe was dismissed from his employment. Mr Tunnicliffe claims unjustified dismissal.

Mr Tunnicliffe and Solly's accept the facts as described above. The parties, however, do not agree on many of the surrounding facts, including what process (if any) Solly's followed in dismissing Mr Tunnicliffe. The Authority's investigation

For the Authority's investigation written witness statements were lodged from Mr Tunnicliffe and his wife Amanda Tunnicliffe. On behalf of Solly's, a statement was lodged from Nigel Ward, the Christchurch Branch Manager. Corbin Rushton, a Yard Manager at Solly's (and who Mr Tunnicliffe reported to) was summonsed. All witnesses attended the Investigation Meeting, confirmed their evidence, and answered questions under oath or affirmation.

Following the Investigation Meeting, submissions and provision of further information were timetabled.

Mr Tunnicliffe was asked whether at the time of his job interview he knew he had a court hearing scheduled. He replied that due to the stress of being made redundant from his former employer following the sale of that company, he had forgotten. Mr Tunnicliffe accepts he knew the court hearing could result in the loss of his licence but says he only remembered about it when his lawyer rang him up two days prior to the hearing (after he had commenced his role with Solly's). The employment agreement

The unsigned employment agreement specifies at clause 18.5 that "loss of licence for any reason may result in termination of employment". The dismissal - Mr Tunnicliffe's version

Mr Tunnicliffe initially said that other than his subsequent dismissal meeting on 24 April 2024, he had no further meetings with Mr Ward. However, he later recalled conversations with Mr Ward in his office about his application for a limited licence. He added that at no point was a disciplinary process mentioned, commenced, or progressed. Mr Tunnicliffe also says he did not receive any correspondence about a disciplinary process, and nor did Mr Ward talk to him about clause 18.5 of his employment agreement.

On 4 March 2024, Mr Ward wrote to Mr Tunnicliffe inviting him to a disciplinary meeting regarding the allegation that he had failed to disclose a pending court hearing for drink driving and subsequently been disqualified. The letter noted that the allegations could amount to serious misconduct, and his employment could be terminated.

At no stage during those meetings does Mr Rushton recall a disciplinary process being mentioned, or of correspondence to Mr Tunnicliffe being referred to; however, he does recall Mr Ward being disappointed and making passing remarks such as "why did you lie to me?" and "why did you not disclose this at the start?". Mr Rushton also recalls a clause in Mr Tunnicliffe's employment agreement being discussed but does not recall Mr Tunnicliffe ever saying he thought he might get off the charge.

Mr Ward became angry at the suggestion Solly's should pay for the limited licence application, and an argument ensued, during which Mr Tunnicliffe stormed out of the office (before returning). Ultimately, Mr Ward informed Mr Tunnicliffe his employment was terminated. No termination letter was issued to him.

At the Investigation Meeting, Mr Rushton was questioned extensively on the reasons for the dismissal and Mr Rushton was clear throughout that it was due to Mr Tunnicliffe's lack of effort in obtaining a limited licence. Factual findings

However, CNX's letter does not assist my investigation because it relies on "the process Nigel described" rather than its own knowledge of those processes. 1 In Honda NZ Ltd v NZ Boilermakers etc Union [1991] 3 NZILR 23, the Court of Appeal quotes with approval the then Labour Court's formulation of the standard of proof of serious allegations against an employee. This formulation is also repeated in Glengarry Hancocks Ltd v Madden [1998] 3 ERNZ 361.

It is also notable that from Mr Rushton's perspective the 24 April 2024 meeting had not been arranged to issue Mr Tunnicliffe's dismissal; rather, it arose from what happened at the meeting. This is not consistent with the preparation of a prearranged termination letter.

Mr Ward says the disciplinary process included a meeting on 28 February 2024 (at which Mr Tunnicliffe was informed a disciplinary process would follow), a meeting on 8 March 2024 (at which Mr Tunnicliffe had an opportunity to respond to allegations), and a meeting on 24 April 2024 (at which Mr Tunnicliffe was dismissed). He has provided what he claims to be handwritten notes of each of those meetings. At the top of the notes for each of these meetings it is specified that Mr Tunnicliffe, Mr Ward, and Mr Rushton were all present.

Mr Rushton's compelling account of an impromptu dismissal also conflicts with both the handwritten notes of the termination meeting and any disciplinary process having been followed.

Mr Rushton describes the meeting as including: a further discussion about the limited licence application, a disagreement about who would pay, Mr Tunnicliffe storming out, Mr Tunnicliffe being dismissed without being handed a termination letter, and Mr Tunnicliffe being upset about his dismissal because of the impact it would have on his ability to pay his bills. In contrast, the handwritten notes simply state: "Told Rob it was my view that you deliberately withheld/failed to disclose a pending court case prior to being employed by Solly's. Your employment is terminated. Rob handed letter dated 22/04/2024".

Key issues

As permitted by s 174E of the Employment Relations Act 2000 (the Act) this determination has stated findings of fact and law and expressed conclusions on issues necessary to dispose of the matter. It has not recorded all evidence and submissions received. The contested facts 5 February 2024 job interview

Mr Tunnicliffe then began the process of applying for a limited work licence. This would enable him to continue his duties as a Truck Driver despite his driving disqualification. However, he was unable to complete the application process because Mr Ward never gave him the registration of the vehicle he would be driving while on a limited licence. Mr Tunnicliffe was also advised it could take up to a couple of months to issue his limited licence.

On 28 March 2024, Mr Ward issued Mr Tunnicliffe with a preliminary decision letter upholding Solly's concerns and providing a preliminary view that Mr Tunnicliffe's actions amounted to serious misconduct, and his employment would be summarily terminated. Mr Tunnicliffe was provided an opportunity to respond by 11.30am, 11 April 2024. However, Mr Tunnicliffe did not do so and later informed Mr Ward that he had no feedback to give.

During the meeting, Mr Tunnicliffe said that Solly's should pay for his limited licence application. Mr Rushton thought this was a "really cheeky" thing for Mr Tunnicliffe to say given the issue was of Mr Tunnicliffe's making.

Mr Ward became angry at the suggestion Solly's should pay for the limited licence application, and an argument ensued, during which Mr Tunnicliffe stormed out of the office (before returning). Ultimately, Mr Ward informed Mr Tunnicliffe his employment was terminated. No termination letter was issued to him.

Mr Rushton was a summonsed witness who continues to be a Solly's employee. His employment status arguably incentivises him to assist Solly's in defending the personal grievance, given the potential impact on his employment relationship were he to provide evidence that favours Mr Tunnicliffe. Despite this, Mr Rushton contradicted Mr Ward's evidence on some key issues.

Findings and reasoning highlights

On 24 April 2024, Mr Tunnicliffe was dismissed from his employment. Mr Tunnicliffe claims unjustified dismissal.

Finally, per the chronology below, although Mr Tunnicliffe raised a personal grievance for unjustified dismissal on 30 April 2024, it was not until 22 October 2024 (almost six months later) that Mr Ward provided copies of the letters to Solly's HR.

Furthermore, Mr Tunnicliffe would reasonably have been aware that a failure to adequately progress his limited licence application could jeopardise his ongoing employment with Solly's. Unjustified dismissal claim

I have found that Solly's terminated Mr Tunnicliffe for failing to progress his limited licence application, after matters became heated when Mr Tunnicliffe asked for Solly's to pay. It was therefore an impromptu dismissal without any process. Solly's then erroneously claimed Mr Tunnicliffe was dismissed for the non-disclosure of a pending court case and subsequent licence disqualification and retrofitted a process to justify that dismissal. These are considerable flaws rendering the dismissal procedurally unjustified.

The procedural failings were so serious they also undermine any substantive justification Solly's may have had for the dismissal. What remedies should be awarded?

The dishonesty displayed by Mr Tunnicliffe in his job interview was grave. Had he been truthful, he would not have been offered the role. Consequently, if Solly's had made procedural errors in dismissing him for this, I may have considered his actions sufficiently egregious as to warrant no remedy.6 2 Employment Relations Act 2000, s 123. 3 [2016] NZEmpC 136. 4 At [216]. 5 [2008] NZCA 128. 6 Had I reached this conclusion, I would also have had to consider whether job interview dishonesty sits outside the parameters of employee misconduct given the employment relationship was not on foot at the time. However, I do not consider the Employment Court intended to deliberately limit the conduct assessment in this way. Mr Tunnicliffe's actions pertained to a fundamental aspect of his employment and there is no reason why egregious actions of this nature cannot be used to justify the absence of a remedy.

Mr Tunnicliffe's actions may instead warrant a reduction of remedies for contribution, which I will come to later. Remedies for unjustified dismissal

However, this is subject to the employee's duty to take reasonable steps as are appropriate in the circumstances to mitigate loss,7 and Solly's asserts Mr Tunnicliffe has provided scant evidence of having done so. An unreasonable failure to mitigate loss, means that an employee's lost remuneration stops being caused by the unjustified dismissal but rather becomes a product of that failure. 7 Maddigan v Director-General of Conservation [2019] NZEmpC 190. A failure to mitigate loss does not automatically disentitle an employee to lost wages but will depend on a case-by-case assessment as to whether that failure was reasonable.

I conclude that Mr Tunnicliffe failed to take reasonable steps as were appropriate in the circumstances to mitigate his loss. I decline to award lost wages. Compensation

Subject to any consideration of contribution under s 124 of the Act, I consider an award of $10,000 as compensation to be appropriate. The evidence supports the award of this amount, and it is consistent with recent awards of compensation for unjustifiable dismissals that have had a modest impact on employees.10 Contribution

I find that compensation is to be reduced 50% for contribution. Mr Tunnicliffe is therefore to be awarded $5,000. Outcome and costs

Orders and payments mentioned

• Compensation: $5,000

Note: amounts are extracted from the wording around the orders. Check the PDF for full context (gross/net, tax, contribution, and deadlines).

Practical takeaways

• ERA cases usually turn on two things: what happened (facts and evidence) and whether the employer's actions met the s 103A 'fair and reasonable employer' test.
• Remedies can be reduced for employee contribution. Always check whether the Authority applied a percentage reduction.
• Read the orders section carefully: it is the authoritative list of payments, timeframes, and compliance steps.

Read the full ERA determination (embedded)

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