With change on the horizon in the employment space this year, it is fitting to reflect on some memorable cases of 2024 - and to note why upcoming changes to the Employment Relations Amendment Bill mean some of these decisions would likely have rather different outcomes in 2025.

Pastor is reinstated, and reinstated again, and again, after Church stops paying his wages

One of the most unusual employment cases from the past year was the incredibly acrimonious dispute between Xi Chen, principal pastor at the Bread of Life Christian Church, and three of the six trustees of that church. 

Those trustees unilaterally stopped paying Chen his salary. However, he continued to perform his role, seeing his work as a calling from God. 

He brought proceedings against the church for lost wages and reinstatement.

On an interim basis, the Employment Relations Authority (ERA) ordered that Chen be reinstated to the payroll. 

This was over a year after the church had stopped paying him. 

The church instead filed a challenge in the Employment Court. Among other things, it claimed that Chen should be able to get donations from his supporters so he could pay himself. 

Unsurprisingly, the Employment Court did not consider it reasonable for an employee to be asked to pay himself, and the church was again ordered to reinstate Chen to the payroll.

The ERA then ordered his permanent reinstatement. 

However, despite its previous lack of success in doing so, the church was clearly determined to exit Chen and dismissed him five days later. 

Chen filed a second unjustified dismissal claim, and the matter was moved to the Employment Court. 

Therefore, unless they have managed to resolve their differences in the meantime, the saga of Mr Chen and the Bread of Life Christian Church looks set to continue into 2025. 

You can read more on the determination relating to reinstatement in Rebecca Rendle’s article here.

Kmart security guard reinstated after dismissal for breaching policy forbidding heroism

When Michelle Knuth, a Kmart employee, was returning from a break, she encountered a member of the public attacking two security guards outside the store and decided to intervene.

CCTV footage showed Knuth seeking to de-escalate the situation by holding her hands up in front of the security guards while also distancing herself from the attacker.

Knuth was later dismissed for serious misconduct for breaching Kmart’s code of conduct and "5 D’s" policy. 

That policy was headed “don’t be a hero when it comes to your safety” and set out the procedure for dealing with threatening behaviour (distance, door, de-escalate, don’t detain, don’t follow).

However, the ERA found, on a preliminary basis, that Knuth had handled the situation in accordance with her training. Some may say it was a rather heroic action by Knuth and, when asked about her actions in the investigation, she said she would do it again.

As discussed by Rebecca Rendle, Knuth was reinstated back into her role on an interim basis.

'I still DON’T trust my CEO' workplace décor not enough to justify dismissal

While some may decorate their desks with family pictures and weekly planners, a senior manager at Mackenzie District Council took their décor to another level, pinning a piece of paper with “I still DON’T trust my CEO” next to the wallboard in his open plan office.

The council carried out a disciplinary process and dismissed the employee on the grounds that his conduct was in breach of the council’s Code of Conduct and an obligation of loyalty to the council. 

The employee had claimed that he accidentally left the note up there and that given it was in his personal workspace he did not intend for anyone to see it.

The ERA determined that Martin Homisan was unjustifiably dismissed due to procedural defects in the disciplinary process undertaken by the council. 

These included a failure to give Homisan an opportunity to comment on whether the matter amounted to serious misconduct or adequate time to prepare or seek advice before launching a meeting, as well as deciding that the appropriate investigator, and decision-maker in the circumstances, was the very CEO that Homisan made clear that he still doesn’t trust.

The ERA stated that had the council conducted a fair process, then the dismissal may have been justified, but found that Homisan was unfairly affected by more than minor procedural flaws. 

The ERA awarded Homisan just under $28,000 in compensation and lost earnings, after a 15% reduction in remedies for his contributory actions.

Altercation over music volume and pencils escalates quickly

In a heated moment on a job site, a newly employed building apprentice threatened to “put a nail through his [foreman’s] skull” during an argument about the volume of music and the use of a pencil.

The apprentice, Matthew Cooper, was holding a nail gun at the time of the threat. According to Cooper, the foreman was unaccommodating when he asked him to turn down his music and remonstrated with Cooper on the ownership and use of a specialist marking pencil that Cooper had lent from a coworker. 

Cooper claimed that his outburst was in reaction to feeling fearful that the subsequent argument between them was going to result in a physical altercation.

Employer NXT Level Construction believed that Cooper was subject to a 90-day trial period and dismissed him in reliance on that clause.

The ERA found that the trial period was invalid because it had not been agreed upon before employment commenced.

The ERA found that there were procedural defects in the disciplinary process, including dismissing Cooper before any investigation or semblance of a fair process commenced. 

The ERA ordered NXT Level Construction to pay Cooper just under $10,000 for lost wages and compensation for hurt and humiliation, with a reduction of 20% made to the compensatory award due to Mr Cooper’s contribution.

Can we expect the same outcomes in 2025?

The Government has announced that an Employment Relations Amendment Bill will be introduced in 2025 to, among other things, remove “all remedies for employees whose behaviour amounts to serious misconduct”, “allow remedy reductions of up to 100% where an employee has contributed to the situation which gave rise to the personal grievance” and to increase “the threshold for procedural error”.

It is still unclear as to exactly how these amendments would operate in practice. However, once in effect, cases such as Homisan and Cooper are likely to be decided differently due to the employees’ contributory conduct. 

It appears that the days of "misbehaving" employees benefitting from their employer’s procedural errors may be numbered.

Special thanks to Ngahuia Muru and Enna Pesic for their assistance in wiritng this article.