Sirikanya Pankhum v Super Vape Store Limited [2026] NZERA 149

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination about a probation-period dismissal carried out by WhatsApp message. The full determination is embedded at the end of this page.

What happened

Ms Pankhum was hired as a retail assistant on 11 October 2024, but the Auckland store she was intended to work at did not open until 18 November 2024.

Her employment agreement contained a six month probation clause allowing termination on one week's notice (or pay in lieu).

On 13 January 2025, SVSL ended her employment by WhatsApp message. The message said CCTV and 'performance reports' showed she had not met KPIs like basket size/value and customer sign-up rate, and that her probation had not been met.

SVSL's position was that performance concerns had been raised and training was offered. Ms Pankhum said she was never told there was a performance problem and the dismissal came as a complete shock.

What the Authority had to decide

• Was the dismissal justified under the s 103A test (what a fair and reasonable employer could have done in all the circumstances)?
• If unjustified, what remedies should be awarded: compensation (hurt/humiliation), and reimbursement of lost remuneration (up to three months unless discretion exercised)?
• Should remedies be reduced for employee contribution under s 124?

Key findings in plain English

• Probation is not a free pass: an employer can dismiss for poor performance, but it must still act fairly and reasonably and follow a fair process.
• SVSL had a staged performance management policy (verbal warning, written warning, final warning, and disciplinary meeting with 48 hours written notice and supporting documents).
• SVSL did not put performance concerns to Ms Pankhum in writing, did not hold any meeting to address performance, and did not invite her to any disciplinary meeting.
• SVSL produced a handwritten diary note to support a claimed warning, but the Authority found SVSL did not follow its own policy and did not issue a proper written warning.
• SVSL terminated employment by WhatsApp message and did not comply with the fair process requirements in the Act.
• Result: Ms Pankhum was unjustifiably dismissed (and her disadvantage grievance was also established).

Remedies and orders

• Compensation: $12,500 for humiliation, loss of dignity and injury to feelings. The Authority accepted evidence of shock, shame, and depressive symptoms, and witness observations of the emotional impact.
• Lost remuneration: $7,873.92 gross (three months). The Authority accepted mitigation steps were reasonable but declined to order more than three months, noting it was unlikely employment would have continued beyond that period because the Auckland store later closed.
• Public holiday / leave: $311.28 net (public holidays not paid for, and leave accrual issue in first week cash pay).
• Contribution: no reduction (SVSL did not establish that any alleged performance issues were properly raised and managed before dismissal).
• Costs: reserved (memorandum timetable if not agreed).

Why this case matters

• If you have performance concerns, raise them early, put them in writing, and run a fair improvement process. Surprise dismissals are high-risk.
• If your business has a policy/manual, follow it. Ignoring your own staged warnings and meeting requirements is often fatal.
• Probation clauses still require fairness. They do not remove s 103A obligations.
• Remedies can be capped by real-world contingencies (here: store closure limited what would likely have happened).

Read the full ERA determination (embedded)

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