STEWART v OPEN COUNTRY DAIRY LIMITED (3265479), OPEN COUNTRY DAIRY LIMITED v STEWART (3275619) [2025] NZERA 330

This page summarises and embeds an Employment Relations Authority (ERA) determination. It is not legal advice.

Story in plain English

A penalty determination was made.

In summary, Employment relationship problem [2] Simon Stewart alleges he was unjustifiably dismissed by Open Country Dairy Limited (OCDL) from his position as Group Market Manager. After that, Mr Stewart also alleges he was disadvantaged in his employment prior to his summary dismissal because of an unjustified action or actions by OCDL. Later, Also during the investigation meeting, Mr Peters gave evidence to the effect that notes were taken during the meeting where OCDL suspended Mr Stewart. The determination records that OCDL said this was permissible under its (quoted wording omitted). The Authority notes that Several minutes later they returned and confirmed that Mr Stewart would be suspended pending further investigations into their concerns. Ultimately, Letter of 18 October 2023 [32] On 18 October 2023, Mr McCutcheon sent Mr Stewart a letter via his solicitor inviting him to an investigation meeting on 25 October 2023. In the end, Accompanying the letter was a copy of a report prepared on 30 October 2023 by Beattie Varley, the contractor which carried out a forensic examination of Mr Stewart's work laptop and mobile phone.

Key case markers

• This determination comes from the Auckland registry.
• The parties are STEWART (employee) and OPEN COUNTRY DAIRY LIMITED (3265479), OPEN COUNTRY DAIRY LIMITED (employer).
• Hearing date noted: 10 and 11 September 2024.
• Authority member: Andrew Dallas.

Key events described

• Employment relationship problem [2] Simon Stewart alleges he was unjustifiably dismissed by Open Country Dairy Limited (OCDL) from his position as Group Market Manager.
• Mr Stewart also alleges he was disadvantaged in his employment prior to his summary dismissal because of an unjustified action or actions by OCDL.
• Also during the investigation meeting, Mr Peters gave evidence to the effect that notes were taken during the meeting where OCDL suspended Mr Stewart.
• OCDL said this was permissible under its (quoted wording omitted).
• Several minutes later they returned and confirmed that Mr Stewart would be suspended pending further investigations into their concerns.
• Letter of 18 October 2023 [32] On 18 October 2023, Mr McCutcheon sent Mr Stewart a letter via his solicitor inviting him to an investigation meeting on 25 October 2023.
• Accompanying the letter was a copy of a report prepared on 30 October 2023 by Beattie Varley, the contractor which carried out a forensic examination of Mr Stewart's work laptop and mobile phone.
• On 14 November 2023, OCDL summarily dismissed Mr Stewart by letter dated the same day.
• The Authority found OCDL's failure to follow the process is a relevant factor going to justifiability of Mr Stewart's dismissal under s 103(A)(4) of the Act.
• The Authority found it could not do this when it decided to dismiss Mr Stewart summarily on 14 November 2023, being also his last day covered by his medical certificate.
• Standing back and reviewing the matter objectively, The Authority found Mr Stewart was unjustifiably dismissed by OCDL.
• During the investigation meeting, Mr Stewart said he received in the order of $US100,000 from his consulting business.

Decision markers

• Having regard to the reasonable process followed by Mr McCutcheon and Mr Peters and reviewing the transcript of the meeting, The Authority found Mr Stewart was capable of both understanding what was being put to him and providing sensible and credible responses to it.
• The Authority found OCDL's failure to follow the process is a relevant factor going to justifiability of Mr Stewart's dismissal under s 103(A)(4) of the Act.
• The Authority found it could not do this when it decided to dismiss Mr Stewart summarily on 14 November 2023, being also his last day covered by his medical certificate.
• Standing back and reviewing the matter objectively, The Authority found Mr Stewart was unjustifiably dismissed by OCDL.
• On the evidence before the Authority, The Authority found Mr Stewart's contribution towards the situation giving rise to his personal grievance warrants a proportionate reduction of one hundred percent (100%) to his reimbursement of lost wages remedy under s 128(2).

Orders and payments mentioned

• Costs: Costs reserved.

Note: figures above are extracted from the orders section (or the final orders wording). Check the PDF for full context and any gross/net directions.

Practical takeaways

• Unjustified disadvantage claims require both unjustified conduct and actual disadvantage.
• Dismissal justification is assessed through s 103A: what a fair and reasonable employer could have done in all the circumstances.

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.