![TRAIL v VEOLIA WATER SERVICES LIMITED [2025] NZERA 353 - dismissal for workplace outbursts still unjustified](/Images/site/EmploymentAdvocatesAucklandCard.jpg)
Veolia dismissed Mr Trail after a series of workplace outbursts, having previously issued a warning and then relied on later complaints. The ERA examined whether the proven conduct and disciplinary history could reasonably justify dismissal.
Redundancy is defined at common law as a situation where an employee's position becomes surplus to the needs of the employer. A redundancy is treated by the Courts as a dismissal, therefore it must be genuine and carried out in a procedurally fair way.
Redundancy is a form of dismissal where the employer says your position is no longer needed. Even if the business decision is genuine, the employer must follow a fair process and the outcome must be one a fair and reasonable employer could have reached (section 103A - test of justification).
A "genuine redundancy" is not about whether you are a good employee - it is about whether the employer genuinely no longer needs the job to be done in the same way. If redundancy is used as a pretext to remove a person, it can be an unjustified dismissal.
There is no automatic statutory redundancy compensation. Entitlement usually depends on your employment agreement (or sometimes a workplace policy or established practice).
If you are facing redundancy (or have already been made redundant), we can assess whether the redundancy was genuine and whether the employer followed a fair process under
section 103A, and if not, raise a Personal Grievance (PG) and pursue appropriate remedies.
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A redundancy can fail in more than one way. The employer may not have a genuine business reason for removing the position, or the underlying restructure may be genuine but the dismissal process may still be unjustified because consultation, disclosure, selection or redeployment was not handled fairly. The question is not simply whether the employer can point to a restructure document. The reason for dismissal and the way the decision was reached both matter.
Where a restructure removes only some positions, the selection exercise can become the centre of the dispute. Criteria should relate to the genuine needs of the proposed structure, employees should have a meaningful opportunity to comment on information that affects them, and scoring should not be manipulated to remove a particular person. Ask for the criteria, weightings, scores and the information used to reach them.
A redundancy process should address whether there are suitable alternative roles before employment ends. A vacancy may not be identical to the old job. Depending on the circumstances, experience, transferable skills and reasonable training can all matter when assessing whether redeployment was genuinely considered.
A later advertisement or replacement hire does not automatically prove that the original redundancy was a sham, but it can be important evidence. Compare the new role with the old role: duties, reporting line, hours, location, seniority, skills and when the employer decided the work was still required. Preserve screenshots and job advertisements rather than relying on memory later.
Examples from the ERA case library:
Put the proposal, feedback, selection material, redeployment correspondence and outcome letter together. The issue is usually much easier to assess from the actual documents than from the final redundancy letter alone.
Check My Redundancy Case Personal Grievance guide
Veolia dismissed Mr Trail after a series of workplace outbursts, having previously issued a warning and then relied on later complaints. The ERA examined whether the proven conduct and disciplinary history could reasonably justify dismissal.
Henry Penny was selected for redundancy from Frello's software-development team after a restructure intended to reduce headcount. He argued resignations had already reduced staff numbers, the selection outcome was predetermined, and consultation and redeployment were not genuine.
Ms Udumullaga was presented with an employer-prepared resignation letter and was later told her job had already been disestablished. The dispute concerned redundancy, periods when she said she was fit and available to work, unpaid entitlements, and whether the employer's process was genuine and fair.
Brother Coffee closed its cafe and made Ms Stillman redundant. The ERA accepted there were genuine commercial and personal reasons to close but examined when the decision was actually made and whether consultation occurred before the outcome became fixed.
Mr Williams was told by email on 17 March 2024 that he had been made redundant immediately. He had not previously been told his job was in jeopardy, no supporting information accompanied the decision, and there had been no genuine consultation before the outcome was reached.
Mr van Heerden was told at a 30 January 2024 meeting that his position had been disestablished and his employment was ending for redundancy. The decision had effectively been made before he was told his job was at risk, and the process mixed redundancy with irrelevant performance and conduct concerns.
Ms Cheng's case against Lincoln University involved several employment grievances and required the ERA to distinguish the claims that were made out from those that were not. The resulting orders included both compensation and a wage-related remedy rather than an across-the-board finding for either party.
Mr Hill challenged the ending of his employment with Tamaki Labour Hire and associated treatment during the employment relationship. The case required the ERA to separate the parts of his grievance that were established from claims for which the evidence did not justify relief.