Sidney Yu and Jing Tham v Queenstown Nursery Limited [2026] NZERA 446

This Employment Relations Authority (ERA) determination concerns Sidney Yu and Jing Tham, who were in New Zealand on visas and worked for Queenstown Nursery Limited as nursery assistants. The employer described the roles as casual and argued that work was only offered day by day. The Authority accepted the work was temporary and casual in a broad sense, but found that a later email promising Monday to Wednesday work for "at least the next three weeks" created a work assignment that should have continued until 23 April 2025. Ending the work on 15 April 2025 was an unjustified dismissal. The full determination is embedded at the end of this page.

The work arrangement

Ms Tham and Mr Yu applied for nursery assistant work after previous nursery experience. Mr Jones, for Queenstown Nursery Limited, replied that the business needed temporary staff for the next few weeks to finish potting and weeding plant stock. The first day was to be a paid trial. If they met the required standards, they would be offered a casual position until the work was complete.

The initial email described the work as estimated to last three to four weeks, subject to being more or less depending on how things went. It also specified the ordinary work pattern as 8.00 am to 4.00 pm, Monday to Wednesday, with paid breaks. The pay rate was stated as $26.50 per hour, inclusive of 8 percent holiday pay.

After the paid trial day, Mr Jones emailed Ms Tham asking her to come back the next day. The Authority treated that as meaning the applicants had met the required efficiency and attention-to-detail standards that the employer had identified as important. That mattered later because the employer ultimately tried to justify selecting them for early termination by saying they were less efficient than others.

The email promising at least three more weeks

The decisive communication was Mr Jones' email of 6 April 2025. Ms Tham asked whether they were scheduled to work the following day. Mr Jones replied that there would be work Monday to Wednesday for at least the next three weeks.

The Authority found that this weighed strongly against Queenstown Nursery's argument that each work day was a separate day-by-day casual assignment. The email committed the business to work beyond 15 April 2025, through to 23 April 2025 as the last day of the three-week period. The applicants had therefore accepted and begun performing a casual work assignment that was still temporary, but not terminable merely by saying there would be no further work the next day.

The dismissal email and the changing explanation

On 15 April 2025 Mr Jones emailed Ms Tham saying the business would no longer need them because the temperature was starting to drop off. He repeated shortly afterwards that the reason was weather: the work could not continue because the plants would die if potted up in those conditions.

The applicants challenged that explanation the same day. They relied on the earlier representation that there would be at least three more weeks of work. They said they had turned down other opportunities in reliance on that expectation, and asked that any performance concerns be explained so they could improve.

Later, they discovered that others had continued working after they were told the work had stopped. They emailed again on 2 July 2025, attaching photographs of vehicles at the worksite and a payslip from another worker showing work continued beyond the date when Mr Jones had said there was no more work. The Authority accepted that this communication raised a personal grievance for unjustified dismissal sufficient for the employer to respond.

Mr Jones' response was brief and dismissive. He told Ms Tham that she was misinformed about employment law and that she could put in a complaint if she wished. In the Authority process, QNL later acknowledged that the applicants had in fact been selected because they were considered less efficient than other workers. That was not the reason given at the time.

The Authority rejected the day-by-day casual argument

The Authority accepted that there were times when onsite managers told staff at the end of a shift whether work would continue. In some casual arrangements, that kind of communication can point to a fresh offer and acceptance for each day. But the Authority was not satisfied that was the position here.

The reason was the 6 April 2025 email. It definitely said there was at least three more weeks of work. That commitment extended the assignment beyond 15 April 2025 to 23 April 2025. The Authority found that the applicants should be reimbursed for the four remaining days they ought to have worked.

The employer's position at the time of termination also counted against it. It said the work was stopping because of the weather. It did not tell the applicants they were being selected because of inefficiency. That later explanation showed the issue was not simply that all work had stopped.

The dismissal was unjustified

The Authority found QNL had not acted as a fair and reasonable employer. It had agreed to work continuing for at least three more weeks and did not raise any issue with the applicants' efficiency before cutting the assignment short. There was no fair process under s 103A of the Employment Relations Act 2000.

The employer also failed to provide substantive evidence justifying the dismissal. Mr Jones said at the investigation meeting that the applicants' work had to be redone, but this was vague and was based on what he said he had heard from his partner. There was no sufficiently specific evidence to prove that performance problems justified ending the work early.

The Authority also noted the employer had built in a paid trial day at the beginning of the arrangement. That was the employer's opportunity to assess whether the applicants met the required standard. After that trial day, the applicants were invited to keep working. The applicants did not know of any performance problems, and the employer continued offering work after the trial.

Good faith breach

The Authority found that the likely real reason for ending the employment when it did was not explained at the time. That supported a lack of genuineness in the statement that the work was stopping because of weather. The Authority found this also breached the employer's duty of good faith under s 4 of the Employment Relations Act 2000.

The employer's handling of the later grievance also mattered in the compensation assessment. The Authority accepted that Mr Jones' dismissive response to the applicants' grievance could have added to their humiliation.

Four lost days, including Easter Monday

The Authority ordered payment for the four days the applicants should have continued working up to 23 April 2025. This was ordered as lost benefit under s 128 of the Employment Relations Act, flowing from the unjustified dismissal.

One of those days was Easter Monday, 21 April 2025. Mr Jones said no one worked that day. The Authority accepted that, but still found Easter Monday was an otherwise working day for Ms Tham and Mr Yu. The written terms said the work days were Monday to Wednesday and did not say that the casual work would not include public holidays falling on those days. But for the unjustified dismissal, the work pattern would have continued through to 23 April 2025.

The Authority made a practical calculation using the stated rate of $26.50 per hour, even though that rate was described as inclusive of 8 percent holiday pay. It also noted that the employer should consider the statutory requirements for pay-as-you-go holiday pay, including the need to record the holiday pay component separately.

Compensation and no contribution reduction

The applicants sought compensation for emotional distress and mental suffering. The Authority did not accept every aspect of the wider exploitation allegation, and noted the short period of employment and limited evidence about ongoing financial stress. But it accepted there was humiliation and loss of dignity when the applicants discovered the weather explanation did not reflect the true position and that they had likely been singled out.

The humiliation was reinforced by Mr Jones' later acknowledgment that they had been selected because they were considered least efficient, and by the fact they had communicated with fellow workers after discovering the work had continued. The Authority awarded each applicant $2,000 compensation for humiliation, loss of dignity and injury to feelings.

The Authority found nothing to support reducing remedies for contribution. Neither applicant had behaved in a way that contributed to the grievance. There was therefore no reduction under s 124 of the Employment Relations Act.

Why this case matters

Yu and Tham v Queenstown Nursery Limited is a useful decision for casual and temporary employment disputes. It shows that the real question is not simply whether the employment was called casual. The Authority will examine what work was actually offered and accepted. A short email confirming a future work pattern can be enough to create a continuing assignment.

The case is also a reminder that employers need to be honest and clear about why work is ending. Saying work has stopped because of weather, when the actual decision is to select particular workers because of alleged inefficiency, risks an unjustified dismissal finding and a good-faith breach.

Finally, the decision illustrates why written employment agreements are not a mere technicality. There was no individual employment agreement here. That left important matters, including the effect of a public holiday during a temporary assignment, unclear. The Authority resolved that uncertainty by looking at the written communications that did exist.

Practical takeaways

• Casual does not mean consequence-free: once work is promised for a defined period or pattern, ending it early may be a dismissal.
• Email commitments matter: informal emails can form or evidence the terms of an employment assignment.
• Do not give a false or incomplete reason: weather and performance are different explanations. Employers should state the real reason at the time.
• Raise performance issues before relying on them: if inefficiency is the reason, the worker should be told and given a fair chance to respond.
• Use written employment agreements: they reduce uncertainty about casual status, assignment length, public holidays, and holiday pay treatment.
• Pay-as-you-go holiday pay needs care: inclusive holiday pay must comply with the Holidays Act and be properly identified.
• Public holidays can still be payable: a public holiday falling during an accepted work pattern may be an otherwise working day.
• Contribution must be proved: remedies will not be reduced just because the employer is unhappy that a grievance was raised.

Read the full ERA determination (embedded)

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