Authority rejects employer's bid to lean on new high-income remedies threshold
The Employment Relations Authority has ordered a Marlborough restaurant operator to pay $26,000 plus annual holiday arrears to a chef it dismissed by WhatsApp during a seasonal shutdown.
In Alpar v Bookieland Limited [2026] NZERA 191, released on 30 March 2026, Authority member Sarah Kennedy-Martin found that Bookieland Limited, which operates the Mussel Pot restaurant, unjustifiably dismissed chef Tracy Alpar in August 2024.
Alpar had worked at the Mussel Pot for around 14 years before Bookieland purchased the business in May 2022. The restaurant typically closed for approximately three months each winter, and Alpar travelled overseas during the 2024 shutdown expecting to return when it reopened in spring.
While overseas, Alpar messaged shareholder Susana Wong on WhatsApp in August 2024 to ask when she should start back.
Wong replied, "We dealing with another potential buyer currently. So we just run with very low staff in case go through the deal. Think we are fine for staff now."
Alpar then found a May 2024 Facebook post showing Wong had advertised for a chef at the Mussel Pot and corresponded with an applicant interested in the position. Wong gave evidence the vacancy related to another business she was involved with, but Kennedy-Martin found the message under the post undermined that evidence.
Bookieland initially relied on a fixed-term agreement but later conceded the unsigned documents did not meet the requirements of s 66 of the Employment Relations Act 2000. The company then argued Alpar's employment had ended by mutual agreement in May 2024, before she travelled overseas, when Wong told her she would not be re-engaged for a third season because the business was to be sold.
Kennedy-Martin rejected that position. She found the evidence did not support mutual agreement that employment would end at the start of the seasonal close down. Alpar could reasonably expect ongoing employment after the winter shutdown given the regular seasonal work pattern, and her decisions to vacate the on-site accommodation, accept final payslips and discuss future business ventures did not establish mutual termination.
Applying the test from Wellington, Taranaki & Marlborough Clerical v Greenwich, Kennedy-Martin held that Bookieland made it clear Alpar was dismissed on or about 12 August 2024 after the WhatsApp exchange and after Alpar discovered the post and message from Wong regarding the chef vacancy. The personal grievance, raised on 21 August 2024, fell within the 90-day window under s 114 of the Act.
Bookieland submitted that Alpar's remuneration, which included free accommodation with electricity and internet covered plus a $350 weekly cash component bringing her total weekly pay to $1,750, lifted her earnings to a high amount for the industry she was in. It pointed to the "high income" threshold in the Employment Relations (Restraint of Remedies) Amendment Bill, since passed into law, and argued Alpar was not a vulnerable employee but an experienced businesswoman. Kennedy-Martin found Alpar's earnings were not at a level comparable to the 2026 amendments to the Act and that vulnerability did not form part of the test for whether lost wages should be awarded in the case.
Alpar's evidence was that her dismissal had a major impact on her mental health, with her emotional and physical health deteriorating after she returned to New Zealand early from overseas due to financial concerns. She sought advice and treatment from health professionals and provided supporting letters from her general practitioner and a counsellor. Kennedy-Martin accepted Alpar suffered injury to feelings and humiliation as a result of the suddenness of the dismissal and the financial consequences, while acknowledging there were other stressors in her life at the time.
By 9 October 2024, Alpar had incorporated a company; by 25 October she had settled on the purchase of commercial premises; and by 22 December 2024 she had opened her own café, MPR Eatery, in Havelock.
Kennedy-Martin ordered Bookieland to pay Alpar, within 28 days, $12,000 in compensation under s 123(1)(c)(i) for humiliation, loss of dignity and injury to feelings, $14,000 representing two months' lost wages under s 124(1)(b) and s 128, and annual holiday arrears, with the arrears reflecting that holiday pay had been calculated on an amount that did not include the $350 weekly cash component. The parties have leave to return to the Authority if they cannot agree on the arrears calculation. Kennedy-Martin found Alpar did not contribute to the personal grievance and reserved costs.
