This page summarises and displays the Employment Relations Authority (ERA) determination Tihei Kereopa-Rerekura v Cruz Bar Limited [2023] NZERA 376. The core issue: the employee was taken off the roster and his employment was ended while he was isolating under Covid-19 rules. The employer shifted between "abandonment" and "redundancy". The ERA found the dismissal was unjustified.
Quick facts
- Citation: Tihei Kereopa-Rerekura v Cruz Bar Limited [2023] NZERA 376
- ERA registry: Christchurch
- Member: Antoinette Baker
- Investigation meeting: 9 March 2023 (Christchurch)
- Determination date: 17 July 2023
- Representatives: Lawrence Anderson (advocate) for the applicant; Mr Williamson for the respondent
- Role: Security guard at a nightclub operated by Cruz Bar Limited
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.
Practical employer takeaway
- Have a plan for back-up and coverage. If a role is critical (like licensed security), you need contingency for sickness and lawful absences.
- Do not make reactive decisions when frustrated. The ERA expects a reasoned, fair process, even in pressured circumstances.
- If you are relying on redundancy, document the genuine business rationale and consult before deciding.
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
Cruz Bar Limited was ordered to pay
- $1,893.86 gross lost earnings (s 123(1)(b))
- $1,458.00 gross payment for lack of notice period (s 123(1)(b))
- $15,000.00 compensation for humiliation, loss of dignity and injury to feelings (s 123(1)(c))
Read the full determination
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