Unjustified Disadvantage
Solidarity Employment Advocacy
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What It Is
An unjustified disadvantage occurs when your employer’s actions or omissions negatively and unfairly affect your employment conditions, dignity, or wellbeing — even if you are not dismissed. This may include being excluded, having your duties changed without reason, or being treated unfairly compared to others.
Under the Employment Relations Act 2000 (ERA 2000), the key question is whether what the employer did, and how they did it, were what a fair and reasonable employer could have done in all the circumstances (ERA 2000, s 103A).
Your Rights and the Law
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ERA 2000, s 103(1)(b) — You can raise a personal grievance if you have been unjustifiably disadvantaged by an act or omission of your employer.
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ERA 2000, s 103A — Sets the test for justification (both substance and process).
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ERA 2000, s 4 — Requires both parties to act in good faith: open, honest, and communicative dealings; disclosure of relevant information; and genuine consultation.
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The Court of Appeal in A Ltd v H [2016] NZCA 419 confirmed that justification is assessed objectively, considering all the circumstances, and that perfection is not required — only reasonableness.
Process (How a Case Proceeds)
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Document & Collect Evidence – Keep copies of correspondence, rosters, notes of conversations, and performance documents showing how you were disadvantaged. We will request your employer to provide your employment file as well.
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Raise a Personal Grievance – You (or we on your behalf) must raise the grievance within 90 days of the disadvantage becoming known.
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Mediation – The Ministry of Business, Innovation & Employment (MBIE) provides free mediation to seek early resolution. The process is voluntary and both parties must agree to attend.
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Employment Relations Authority Hearing – If mediation fails, a Statement of Problem is filed and the Authority investigates and issues a determination.
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Employment Court Appeal – Either party may appeal on matters of law or serious procedural fairness issues.
Potential Outcomes / Remedies
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Lost wages or benefits — Reimbursement for any loss of income resulting from the disadvantage.
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Compensation — For hurt, humiliation, and injury to feelings (under ERA 2000, s 123(1)(c)(i)).
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Reinstatement or correction of disadvantage — Where feasible.
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Interest / Costs — Often awarded where losses are proven.
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Partial reduction — Possible under s 124 ERA 2000 if the employee contributed to the situation.
Recent Cases of Interest
VXO v Health New Zealand – Te Whatu Ora (in respect of the former Northland District Health Board) [2025] NZEmpC 114
| Aspect | Details |
|---|---|
| Main Facts | Senior medical officer alleged procedural failures and unjustified disadvantage after being placed on special leave during a misconduct inquiry without consultation. Later dismissed for medical incapacity. |
| Legal Reasoning | The Employment Court applied ERA 2000 s 103A and held that the employer’s investigation was sufficiently independent. Placing the employee on special leave without consultation breached process obligations but did not amount to an unjustified disadvantage when considered in context. |
| Outcome / Compensation | Claim dismissed; no compensation awarded. The Court noted the flaw but held overall process reasonable. Non-publication orders were made. |
Cuc v Huynh [2025] NZERA 68 (Employment Relations Authority, February 2025)
| Aspect | Details |
|---|---|
| Main Facts | Employee alleged unjustified disadvantage and dismissal after the employer reduced hours, failed to pay holiday pay, and terminated employment abruptly. |
| Legal Reasoning | The Authority found breaches of ERA 2000 ss 103 and 4 (good faith). Employer failed to provide written agreement and adequate notice; actions were not what a fair and reasonable employer could do under s 103A. |
| Outcome / Compensation | Authority awarded reimbursement of lost wages, holiday pay arrears, and NZD 12 000 compensation for hurt and humiliation. |
Magnum Hire Ltd v Parker [2024] NZERA 85
| Aspect | Details |
|---|---|
| Main Facts | Employee alleged bullying, suspension, and constructive dismissal after ongoing hostile conduct and breach of contract. |
| Legal Reasoning | Authority held employer’s behaviour amounted to multiple unjustified disadvantages under ERA 2000 ss 103(1)(b) and 4. Employer’s handling of complaints and communication breached good faith and trust obligations. |
| Outcome / Compensation | Total award ≈ NZD 310 000 including s123 compensation of NZD 50 000 for constructive dismissal, NZD 50 000 for bullying disadvantage, NZD 5 000 for suspension grievance, plus lost wages, penalties, and costs. |
Wilson v AZ Scaffolding (2017) Ltd [2025] NZEmpC 21
| Aspect | Details |
|---|---|
| Facts | The earlier Authority (NZERA) had ordered an employer to pay compensation for unjustified dismissal ($15,000) plus arrears, plus contributions toward costs. The employer failed to comply with multiple determinations and orders, including costs orders, and ignored further compliance applications. The employee sought a sanction in Court. |
| Legal Reasoning | The Employment Court inferred the non-compliance was deliberate and found a serious breach under s 140(6)(d) ERA 2000 (power to impose fines). It deemed a fine appropriate because lesser measures had been ignored. |
| Outcome / Compensation | The Court imposed a fine of NZD 10,000 under s 140(6)(d) for non-compliance, plus NZD 3,000 in costs. |
Take Action Today
If you feel you’ve been treated unfairly or disadvantaged at work, you don’t have to face it alone.
Fill in the form at solidarityemploymentadvocacy.com/contact to get in touch for a no-obligation consultation about your situation.
Our advocates will assess your case, gather the facts, and pursue the justice and compensation you deserve.
