Tihei Kereopa-Rerekura v Cruz Bar Ltd [2023] NZERA 376 - Unjustified dismissal during Covid isolation, redundancy not genuine

What happened (overview)

Tihei worked for Cruz Bar Limited from 12 August 2020 until March 2022. The employment relationship problem arose when he was required to isolate at home as a household contact under Covid-19 rules and then tested positive himself.

A text message exchange on 5 March 2022 shows the employer told Tihei there was "no reason" not to come to work, and then accused him of having "abandoned" his job. When Tihei later tested positive for Covid-19, the employer then told him his position would have to be made redundant.

Why this case matters

• Redundancy vs dismissal: calling something "redundancy" does not make it genuine if the role continues or if the real reason is something else.
• Good faith and consultation: if redundancy is proposed, employers are expected to consult before making a final decision and to provide relevant information.
• Notice still applies: absent a justified summary dismissal, contractual notice is usually payable.

Key findings (plain English)

• Redundancy not genuine: the Authority found the security role continued and had not genuinely been disestablished, which defeated the claimed redundancy.
• No fair process: there was no meaningful consultation and no provision of relevant information before an adverse decision was made.
• Real reason was reactive frustration: the Authority found the employer's decision-making shifted, and it was not what a fair and reasonable employer could have done under section 103A.
• Unjustified dismissal: Cruz Bar Limited unjustifiably dismissed Tihei and remedies were awarded.
• No contributory conduct reduction: the Authority found Tihei did not contribute to the situation giving rise to the grievance.
• No penalties: although the employer did not supply records and the signed IEA when requested, the Authority declined to impose penalties on the facts.

Orders and remedies