Shenwei Zhang v Fat Dragon Restaurant Management Limited and Kejian Ji [2025] NZERA 737

A restaurant waiter was labelled "casual as required" in his written agreement, but the ERA looked at the reality: regular rosters over years, mutual expectation of ongoing work, and employer direction. When the employer stopped rostering him and the head chef told him by WeChat, "You don't need to come anymore", the Authority treated that as a dismissal. The dismissal was unjustified and substantial arrears were ordered. The full determination is embedded at the end of this page.

Background

Mr Zhang worked as a waiter for Fat Dragon from 15 April 2019 until late September 2023. He was also a full-time university student. Fat Dragon accommodated periods of reduced availability for exams and study, and rosters were managed through a software application and a work group WeChat chat.

Mr Zhang's written agreement described him as "casual" on an "as required" basis. The employer later relied on that label and argued he was not dismissed - his services were simply not required after September 2023. The Authority said the label was not decisive. The real nature of the relationship had to be assessed by looking at the parties' conduct and the pattern of work.

Casual vs permanent: why the "casual" label was rejected

The Authority applied the standard approach that substance prevails over form. It considered (among other things): whether the work was integral to the business, whether the work pattern was intermittent/unpredictable or consistent/regular, and whether the conduct created a mutual expectation of ongoing work.

The Authority noted that over about 200 weeks (4 November 2019 to 10 September 2023) Mr Zhang worked 176 weeks, often at least three shifts per week (except during exam periods), and averaged about 17 hours per week. The roster system also showed regular weekend work patterns over time. On those facts, the Authority found Mr Zhang was a permanent employee, including at the time the employment ended.

What happened at the end

From June 2023 Mr Zhang noticed his rostered shifts were decreasing. By late September 2023 he stopped receiving weekly rosters. On 24 September 2023 he did not receive a roster. On 25 September he raised it with Mr Ji, who told him to speak with the head chef.

On 26 September 2023 Mr Zhang exchanged WeChat messages with the head chef. The head chef said there were no shifts available and told him to look for another job. When Mr Zhang pressed for reasons, the head chef said his performance was unsatisfactory and ended the exchange with (in translation) "You don't need to come anymore". Mr Zhang treated that as a dismissal.

Mr Zhang forwarded the WeChat exchange to Mr Ji and asked if it was fair. Mr Ji said he would respond but did not. On 28 September 2023 Mr Zhang raised a Personal Grievance (PG) for unjustified dismissal and also raised arrears issues (public holiday pay, COVID payment underpayments, and sick leave).

Why the dismissal was unjustified

The Authority applied s 103A: whether Fat Dragon's actions were what a fair and reasonable employer could have done in all the circumstances at the time. The employer did not follow a fair process. The Authority did not accept that Mr Zhang's "casual" status removed the need for process, and it rejected the employer's position that there was no dismissal.

Performance concerns were raised late and through the WeChat exchange, rather than through a proper warnings/process pathway. The Authority found no deduction for contribution was warranted: the unjustifiability arose from the employer failing to meet minimum statutory obligations, and Mr Zhang was not blameworthy for those failures.

Remedies: reimbursement and compensation

Arrears, COVID payments, and interest

The Authority also ordered a package of employment standards arrears based on Mr Zhang's detailed calculations and the wage/time records provided by the employer. The arrears included sick/bereavement leave, public holiday time-and-a-half shortfalls, alternative holiday pay, annual holiday pay, and COVID payment underpayments.

Interest was ordered on the arrears total of $9,904.08 (gross) from the date of determination until payment, using the civil debt interest calculator.

Penalty and s 142Y leave

• Penalty (records): Mr Zhang sought a penalty for delay in providing wage and time records on request. The Authority said the delay was not acceptable but held a penalty was not warranted on the facts.
• s 142Y leave against Mr Ji: Mr Zhang sought leave to recover employment standards arrears against Mr Ji as a person involved. Leave was declined because there was insufficient evidence of a qualifying default at the time of the determination.

Costs

Costs were reserved. The Authority encouraged the parties to resolve costs. If costs could not be agreed, the determination set a memorandum timetable (21 days for the applicant, then 14 days for any response), and noted costs would generally be assessed using the Authority's notional daily rate unless particular factors justified adjustment.

Practical takeaways

• Labels are not decisive: long-running regular rosters can defeat a "casual" label.
• Messaging app terminations are risky: "no more shifts" and "do not come anymore" messages can amount to dismissal.
• Holiday Act exposure can be large: misclassification and weak record-keeping can generate multiple heads of arrears (public holidays, alternative holidays, annual leave, sick/bereavement leave).
• Interest matters: arrears can attract interest from the determination date until payment.

Read the full ERA determination (embedded)

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