Stephen Nunn v Port Nicholson Fisheries LP [2026] NZERA 345

This Employment Relations Authority (ERA) determination concerns Stephen Nunn, a long-serving driver and process worker for Port Nicholson Fisheries Limited Partnership (PNF). PNF dismissed Mr Nunn without notice after two employment investigations in quick succession about seafood compliance, the recording of product weights, and the handling of live crayfish. The ERA found the dismissal unjustified. The key problems were that PNF did not genuinely consider Mr Nunn's explanations, did not give him the material relied on, relied on a final written warning that should not have been issued, failed to consult before suspension, and failed to consider alternatives to dismissal. PNF was ordered to pay $20,000 compensation, three months lost wages, four weeks notice, and public holiday arrears. The full determination is embedded at the end of this page.

The short point

This case is useful because it shows the difference between a real compliance problem and a fair employment process. PNF operated in a regulated seafood export environment. It was entitled to be concerned about documentation, product receival, and Ministry for Primary Industries (MPI) compliance risk. But that did not allow it to bypass natural justice or treat local depot practice and training gaps as if they were automatically serious misconduct by one employee.

The ERA accepted that compliance mattered. The problem was that PNF did not properly test Mr Nunn's explanations. He said that, in practice, he was mainly the driver; other Tauranga Depot staff normally handled the electronic Tally system and compliance paperwork; the Depot Manager had left; he had not been trained in Tally; and he recorded information on paper for others to enter. PNF had to genuinely engage with those explanations before concluding serious misconduct. It did not do so.

The result was that the first final written warning was unjustified. That mattered because the final written warning then fed into the second investigation and dismissal decision. The Authority found the dismissal unjustified and awarded compensation, lost wages, notice pay, and public holiday arrears.

Background

Mr Nunn began work in June 2014. After PNF took over the business, the parties signed a new individual employment agreement in 2019. Mr Nunn was employed permanently, with 16 guaranteed hours each week. The agreement provided for four weeks notice of termination, except where employment was terminated without notice for serious misconduct.

Mr Nunn worked from the Tauranga Depot as a driver and process worker. PNF exported live crayfish from Auckland or Wellington. Product would be delivered and processed at a depot before being transported for export. The work was regulated and PNF was concerned about compliance with Licensed Fish Receiver requirements.

Mr Nunn's evidence was that his practical role at Tauranga was mostly driving. He collected product from fishing boats, brought it back to the Tauranga Depot, packed live crayfish into the van, drove the product to Auckland or elsewhere, unloaded it, collected empty containers, and returned to Tauranga. He said other depot staff usually entered data, weights, and catch information into the electronic Tally system.

The first investigation: octopus and the final written warning

On 5 May 2024, Mr Nunn received a text message asking him to attend a meeting to "catch up on a couple of things". He was not told that the meeting was an employment investigation meeting or that his conduct was under investigation. At the meeting on 6 May 2024, PNF raised concerns about excessive vehicle speed and the handling of an octopus.

The octopus issue arose from a catch unloaded on 26 March 2024. Mr Nunn recorded the octopus on a handwritten unload docket and put it in the Tauranga freezer, but did not complete the further documentation PNF said was required. PNF said Mr Nunn should have weighed the octopus and entered the correct data before storing it at the depot or transporting the full load to Auckland.

Mr Nunn's explanation was practical and depot-specific. He said octopus was usually sold locally from the Tauranga Depot rather than transported to Auckland. He said other staff usually handled the Tally system and paperwork. He also said he was not trained in Tally and was not familiar with where to enter octopus weight on paper forms if not using the electronic system.

PNF issued a preliminary decision on 21 May 2024. It considered that Mr Nunn's conduct amounted to serious misconduct and proposed a final written warning. On 4 June 2024, PNF confirmed a final written warning for 12 months.

Why the final written warning was flawed

The Authority found significant problems with the first investigation. PNF's own documents described the 6 May meeting as an investigation meeting. That meant Mr Nunn should have been told beforehand what the concerns were and that his conduct was under investigation. He was not.

The Authority also found that PNF did not genuinely consider Mr Nunn's explanation. Mr Nunn had said that the local practice at Tauranga was for the Depot Manager or another worker to handle the compliance data and Tally entries, and that he was mostly the driver. PNF needed to engage with that explanation, especially because the Depot Manager had left and because the evidence supported that Mr Nunn was not trained in Tally.

Another important fact weakened PNF's position. An internal compliance email showed that the octopus issue was later rectified and that Mr Nunn was permitted to take the octopus under a koha-style sale arrangement. That undercut PNF's position that failing to transport the octopus to Auckland was so serious that it justified a serious misconduct finding and final written warning.

The second investigation: crayfish receival, paperwork, and CCTV

On the same day PNF confirmed the final written warning, 4 June 2024, it gave Mr Nunn a new letter starting another disciplinary investigation. This second investigation concerned alleged non-compliance with receiver processes for a landing on 28 May 2024. PNF also stood Mr Nunn down from his duties while the allegations were investigated.

The allegations were that Mr Nunn failed to comply with PNF receiver processes, failed to complete initial compliance checks at receival and tanking, and negligently handled product at receival. Mr Nunn again relied on local practice. He said he weighed the crayfish and recorded the details on paper so that another worker could later enter them into the electronic system.

PNF relied on CCTV footage for parts of the second investigation. It said the footage showed that Mr Nunn had not completed 15 compliance checks and had not handled the crayfish as required by the operations manual. Mr Nunn disputed rough handling and explained that crayfish could climb out of the top bin while being transported. The Authority found that he was not shown the CCTV footage and that his explanations were not properly engaged with.

PNF held Mr Nunn to a Licensed Fish Receiver standard

A recurring theme was that PNF held Mr Nunn to a Licensed Fish Receiver standard. But the Authority found that this standard was not properly set out in the allegations. For the first matter, there were no proper allegations given to him before the meeting. For the second, the allegations relied on conduct viewed on CCTV, but the footage itself was not provided to him.

The Authority considered that PNF's real concern appeared to be the way the Tauranga Depot was operating and the fact Mr Nunn had been used mostly as a driver rather than in the full driver/process worker role described in his employment agreement. If PNF had concerns about Mr Nunn's ability to process product, enter data into Tally, or complete correct documentation, it needed to tell him that and address the matter as a performance or training issue where appropriate.

The fact PNF sent Mr Nunn to further training was relevant. But the ERA found there was no evidence PNF genuinely turned its mind to alternatives such as further coaching, training, or a formal performance plan before dismissing him.

The process errors were more than minor

The Authority identified multiple procedural defects. In the first investigation, Mr Nunn was invited to a meeting without being told his conduct was under investigation, no proper allegations were given before the meeting, and information obtained from others was not provided to him. In the second investigation, he was not given an opportunity to view and comment on CCTV footage that was central to the allegations.

In both investigations, PNF failed to properly engage with Mr Nunn's explanations about local depot practice, the absence of the Depot Manager, his lack of Tally training, and the way duties had actually been divided at the Tauranga Depot. Those were not side issues. They went directly to whether Mr Nunn's conduct was deliberate serious misconduct or a product of local practice, training gaps, and unclear expectations.

The Authority also regarded the overlap between the two investigations as problematic. The same decision maker, Mr Phipps, handled both investigations. The second matter was discovered before the final decision on the first investigation. The final written warning from the first investigation was then used in the second investigation, even though the Authority found that warning should not have been issued.

Suspension without consultation

The individual employment agreement allowed suspension on full pay pending a fact-finding or disciplinary investigation, but required consultation with the employee. PNF stood Mr Nunn down on 4 June 2024 when it commenced the second investigation. The Authority found that this did not comply with the suspension clause in the employment agreement.

That suspension issue formed part of the wider procedural unfairness. It also supported the Authority's view that the second investigation appeared to have been approached with an already serious view of the conduct before Mr Nunn had a proper opportunity to respond.

No proper consideration of alternatives to dismissal

PNF dismissed Mr Nunn summarily for serious misconduct on 12 June 2024. The Authority found there was no evidence that PNF considered alternatives to dismissal. That was important because the case had strong features of a capability, training, and depot-practice issue, not merely an individual misconduct issue.

A fair and reasonable employer could have considered coaching, further training, clearer written directions, a formal performance plan, or other steps to manage compliance risk. Instead, PNF sheeted the compliance risk home to Mr Nunn personally and treated the matter as serious misconduct leading to immediate dismissal.

The dismissal was unjustified

The ERA concluded that PNF could not show that it had genuinely considered Mr Nunn's explanations before finding serious misconduct. The first final written warning was not reasonably available in the circumstances. The second investigation relied on that warning, withheld key material, failed to show CCTV footage, did not consult before suspension, and did not consider alternatives to dismissal.

The dismissal was therefore unjustified. Mr Nunn was entitled to remedies.

Compensation

Mr Nunn was 70 years old at the time of dismissal and had worked for about 10 years. He said the sudden dismissal left him bewildered, humiliated, shocked, and anxious. He described feeling like an old appliance that had simply been thrown out. The ERA accepted that the impact fell within the midrange for compensation.

The Authority awarded $20,000 compensation for humiliation, loss of dignity and injury to feelings. It took into account the way the dismissal was handled, the merits of the claim against Mr Nunn, the suddenness of the dismissal, and the failure to consider alternatives.

Lost wages and notice pay

Mr Nunn sought lost wages. He gave evidence that he had looked for work but had been unsuccessful, in part because he believed his age put employers off and because he was more limited in what physical work he could do. The ERA awarded three months wages, inclusive of holiday pay and Kiwisaver.

Because Mr Nunn was summarily dismissed and the employment agreement provided for four weeks notice, the ERA also ordered payment equivalent to his four week notice period.

Public holiday arrears

Mr Nunn also claimed public holiday arrears for the period between April 2022 and February 2023. PNF had accepted that annual holiday and public holiday leave calculations had been incorrect over that period and had entered into a remediation process. The remaining dispute was whether Mr Nunn was still owed the difference between pro-rata public holiday payments and payment based on an 8 hour day.

PNF accepted that it had alternated between paying Mr Nunn 8 hours for public holidays, paying a pro-rata amount, and then returning to 8 hours. The ERA found that, because PNF used the 8 hour approach before April 2022 and after February 2023, PNF must have considered Mr Nunn to be working full-time hours for public holiday purposes. Mr Nunn's claim for the difference was successful.

No contribution reduction

The ERA considered contribution under section 124 of the Employment Relations Act 2000. It found that PNF was not in a position to reach the conclusions it reached about Mr Nunn's conduct, and that the process followed was not one a fair and reasonable employer could follow. In those circumstances, Mr Nunn had not contributed to the personal grievance. There was no reduction to remedies.

Why this case matters

This determination is a strong reminder that regulated-industry compliance concerns do not replace employment law process. An employer may have legitimate regulatory risk, but it still needs to identify the specific allegations, provide the evidence relied on, give the employee a fair opportunity to respond, and genuinely consider the employee's explanation.

The case is also useful for final written warnings. If a final warning is issued after an unfair or inadequately reasoned process, it may be unsafe to rely on that warning to justify dismissal in a later process. Here, the first warning infected the second process because it was used as part of the justification for dismissal.

The public holiday arrears point is also practical. Where an employer has moved between different methods of public holiday calculation, the Authority may look closely at the employer's own approach before and after the disputed period to determine what the employee should have been paid.

Practical takeaways

• Do not invite an employee to a disciplinary investigation as a vague catch-up: the employee should know the real purpose of the meeting.
• Give proper allegations before the meeting: the employee must know what conduct is alleged and why it matters.
• Provide the material relied on: if CCTV footage is central to the allegation, the employee should usually be able to view and comment on it.
• Genuinely consider explanations: local practice, training gaps, unclear expectations, and staffing changes may be directly relevant.
• Be careful using final warnings: an unsafe warning can undermine a later dismissal.
• Consult before suspension: if the employment agreement requires consultation, suspension without consultation is likely to be a problem.
• Consider alternatives to dismissal: coaching, training, clearer directions, or a performance plan may be necessary before moving to dismissal.
• Compliance risk is not a shortcut: regulated industries still need fair and reasonable employment process.
• Check public holiday calculations: inconsistent use of pro-rata and 8 hour calculations can create arrears risk.
• Contribution is not automatic: no reduction was made where the employer could not fairly reach the misconduct conclusions it relied on.

Read the full ERA determination (embedded)

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