Judge finds parties will likely benefit from first-instance investigation
In litigation initiated by a former employee against their previous employer, the New Zealand Employment Court found no important legal question such that the worker could “leap frog” the investigation straight to an Employment Court hearing.
Pratt & Whitney - Air New Zealand Services – the defendant/respondent in the proceedings – previously employed the plaintiff/applicant as an electrical specialist.
In January 2025, before the Employment Relations Authority, the ex-employee commenced litigation against his former employer. He argued that his ex-employer conducted an unfair investigation into his allegedly poor-quality work.
The former employee then applied to remove the matter from the Employment Relations Authority to the Employment Court before the initiation of an investigation. However, he failed the removal test under s 178 of the Employment Relations Act 2000.
The ex-employee applied for special leave to remove the matter to the Employment Court.
In his affidavit, the former employee asserted that he worked for his ex-employer from September 2018 to 11 September 2025, that he eventually received a post-traumatic stress disorder diagnosis, and that his former employer’s investigation initially and wrongly attributed faulty work to him due to his medical difficulties.
The ex-employee’s representative attempted to refine the application by focusing on this reformulated legal question:
“Whether, and if so how, the duties of good faith and justification under ss 4 and 103A of the Employment Relations Act 2000 require an employer conducting a serious safety-sensitive investigation to identify, assess and reasonably manage foreseeable psychological-health risks arising from the design and conduct of that process, where the process is alleged to have caused or materially aggravated incapacity, forced absence or loss of remuneration.”
On 28 July 2026, in Kaden v Pratt & Whitney - Air New Zealand Services [2026] NZEmpC 160, the New Zealand Employment Court dismissed the special leave application for the removal of the matter.
Upon considering the revised legal question, which did not address the concerns regarding the former employee’s underlying health, the Employment Court found it difficult to discern a question of such a nature or quality that the Employment Relations Authority should refrain from hearing it first.
The Employment Court saw no important legal question under s 178 of the Employment Relations Act and no circumstances that should deprive the ex-employer of a first-instance hearing.
Even if the Employment Court found an important legal question, the court would have exercised its discretion to deny special leave to remove the matter, as the parties would likely significantly benefit from a first-instance investigation in the circumstances.
Also on 28 July 2026, in Kaden v Pratt & Whitney - Air New Zealand Services [2026] NZEmpC 161, the Employment Court of New Zealand confirmed that the ex-employee should pay the former employer’s costs of $2,250 for the Employment Relations Authority’s investigation.
Based on the financial information provided, the Employment Court saw nothing preventing the ex-employee from paying the costs either immediately or over time.
Given the lack of disclosure of the former employee’s assets, the Employment Court could not find that the Employment Relations Authority’s costs award went beyond being compensatory or should be subject to a removal or a reduction due to the financial circumstances.
The Employment Court also found the ex-employer entitled to the costs of the unsuccessful challenge.
Here are some other decisions involving Air New Zealand.
Subject to certain conditions, the Court of Appeal of New Zealand issued a 14 May 2026 decision allowing Air New Zealand to appeal on three legal questions identified in its leave application arising from an Employment Court decision in favour of one of its captains.
The Court of Appeal made a 21 February 2025 decision affirming Air New Zealand’s decision to subject a Nelson-based lawyer to a 12-month travel ban and upholding the airline’s right to refuse service due to staff welfare concerns.
The Court of Appeal issued a 20 October 2023 decision refusing to grant an extension of time in a lawsuit assailing Air New Zealand’s policy requiring passengers to have received COVID-19 vaccinations.
Enjoy this story? Read the latest employment and labour law news on the main page!
