Tracy Alpar v Bookieland Limited [2026] NZERA 191

This determination deals with a seasonal hospitality employment arrangement, unsigned "fixed term" paperwork that did not meet the statutory requirements in s 66, and a dismissal communicated by WhatsApp after the winter shutdown. The Authority found the employee was permanent, was dismissed (not mutually agreed to end employment), and the dismissal was unjustified. The full determination is embedded at the end of this page.

Background

Ms Alpar worked at the Mussel Pot restaurant in Havelock for many years. Bookieland Limited purchased the business and employed Ms Alpar from September 2022 as a chef. The restaurant closed for about three months every winter.

Bookieland issued fixed term employment agreements, but they were not signed. Ms Alpar said she asked for amendments (including that her role was full time permanent rather than fixed term). In submissions, Bookieland ultimately accepted the unsigned agreements did not meet the statutory requirements in s 66 and could not be relied on.

How the employment ended

The parties disagreed about whether employment ended by mutual agreement in May 2024 (before Ms Alpar travelled overseas), or whether she remained employed and was dismissed in August 2024 after she asked when work would restart. Bookieland argued it told Ms Alpar she would not be re-engaged for a third season because the business was being marketed for sale, and on that basis her later personal grievance was out of time.

The Authority did not accept there was a mutual agreement to end employment in May 2024. It found Ms Alpar could reasonably expect ongoing employment after the winter shutdown, as had occurred previously. It also found the employer's conduct (either not responding to the WhatsApp enquiry, or responding in a way indicating she was not required) amounted to termination at the employer's initiative. The Authority found Ms Alpar was dismissed on or about 12 August 2024.

Ms Alpar's personal grievance was raised on 21 August 2024, within the 90 day time limit in s 114.

Why the dismissal was unjustified

The Authority applied s 103A (what a fair and reasonable employer could have done in all the circumstances at the time). Because Bookieland proceeded on an incorrect fixed term premise and did not follow a dismissal process (investigation, raising concerns, and giving a meaningful opportunity to respond), it could not justify the dismissal. The dismissal was found unjustified.

Remedies

Compensation

The Authority accepted the sudden ending of employment and the financial consequences caused Ms Alpar injury to feelings. Taking account of the evidence (including health practitioner letters and other life stressors noted in the determination) and comparator case law (including Richora Group Ltd v Cheng), the Authority fixed compensation at $12,000.

Lost wages

Ms Alpar sought three months lost wages. The Authority accepted reimbursement was appropriate, but moderated the period. It noted Ms Alpar took steps to find work and ultimately established a new business by mid-December 2024. The Authority awarded the equivalent of two months lost wages: $14,000.

Annual holiday arrears

The Authority also ordered annual holiday arrears. The issue was that annual holiday pay calculations appeared not to include a cash component of weekly payments. If the parties cannot agree the calculation, they were given leave to return to the Authority.

Contribution and costs

The Authority found Ms Alpar did not contribute to the situation. Costs were reserved, with a memorandum timetable set if costs could not be agreed.

Practical takeaways

• Fixed term requirements are strict: if a fixed term does not comply with s 66 (including clarity on genuine reasons and proper agreement), it cannot be relied on to end employment.
• Seasonal shutdown does not automatically end employment: an employer still needs clarity and agreement if employment is to end at the start of a shutdown period.
• Messages can amount to dismissal: "no need to come back" type responses on messaging apps can be treated as termination at the employer's initiative.
• Holiday calculations must include all pay: where wages include cash components, leave/holiday calculations must generally include those amounts.

Read the full ERA determination (embedded)

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