ClickCease

Shenwei Zhang worked for Fat Dragon Restaurant Management under an arrangement the employer described as casual. After the relationship deteriorated, his work was ended through WeChat and he pursued dismissal, wage and holiday-pay claims.

The short answer

The ERA rejected the casual label as a basis for avoiding ordinary employment rights and found Mr Zhang was unjustifiably dismissed. It awarded $5,686.33 reimbursement, $12,000 compensation and $9,904.08 in arrears, together with interest.


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.

At a glance

  • Citation: [2025] NZERA 737
  • Registry: Auckland
  • Authority member: Marija Urlich
  • Investigation meeting: 22 - 23 July 2025
  • Submissions / further material: further information 1 and 14 August 2025 from Applicant; submissions 8 August 2025 from Respondent
  • Determination date: 14 November 2025
  • Key issues: casual vs permanent employment; unjustified dismissal; remedies; arrears (leave/public holidays/COVID payments); interest; penalty (records); s 142Y leave; costs
  • Outcome: Mr Zhang was a permanent employee; dismissal was unjustified; reimbursement, compensation, and arrears awarded; penalty declined; s 142Y leave declined; costs reserved

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

Remedies ordered (within 21 days)

  • Reimbursement of lost wages (s 123(1)(b)): $5,686.33 gross
  • Compensation (s 123(1)(c)(i)): $12,000.00

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.

Arrears ordered (gross)

  • Sick and bereavement leave arrears: $445.00
  • Public holiday pay arrears (time and a half shortfalls): $218.94
  • Alternative holiday pay: $1,013.09
  • Annual holiday pay: $6,998.56
  • COVID payments underpaid: $1,228.49
  • Total arrears (for interest): $9,904.08

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.
If you are considering raising a Personal Grievance (PG), the 90 day notification time limit can be critical.

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.

0800 WIN KIWI

Search
Search cases, guides and topics.
Tip: press / to search

Related articles

Browse all articles
Based on: Unfair Dismissal Cases, Casual Employment
Shaun Graves v NZSL Employment Limited [2026] NZERA 669 - contractor became an employee before summary dismissal

Shaun Graves initially worked through his own contracting company, but later moved onto NZSL's PAYE payroll, worked regular hours under its direction and used its equipment. The ERA found he had become an employee from 23 September 2024 and was unjustifiably dismissed when simply told his services were no longer required.

Eric Paul Tillocksingh v Driver Employment Limited [2026] NZERA 663 - resign or be dismissed ultimatum was an unjustified dismissal

After a customer complaint, truck driver Eric Tillocksingh was called into meetings without advance written allegations or warning that dismissal was possible. The ERA preferred his evidence that he was told to resign or be dismissed, found the process fundamentally unfair, and awarded $15,000 compensation plus $17,448.75 lost remuneration.

Ross McCullum v RidgeAir Limited [2026] NZERA 658 - long-serving Chief Pilot was unjustifiably dismissed

After 15 years as RidgeAir's Chief Pilot, Ross McCullum had his work phone disconnected and laptop removed before a meeting at which he was told the business was closing. The ERA found the employer had dismissed him, rejected the later characterisation of his departure as voluntary, and awarded lost wages, compensation and substantial holiday-pay arrears.

Wenpeng Yu v Golden Rooster NZ Trading Ltd [2026] NZERA 699 - one week employee was dismissed, not an abandonment

Golden Rooster said chef Wenpeng Yu abandoned his job after only one week, but WeChat messages supported his evidence that the employer had dismissed him because it was unhappy with his productivity. The ERA found no fair process had been followed and awarded $7,500 compensation, $3,559.20 lost wages and annual holiday pay.

Browse topics