Constructive dismissal claim arose when accident made worker unfit to work
In a proceeding arising from an October 2018 accident that made the applicant unfit to work, the New Zealand Supreme Court did not permit him to appeal an Employment Court order requiring him to pay $20,000 as security for costs.
In Burgess v Tutton Sienko and Hill Partnership [2026] NZSC 102, the applicant worked for the respondent, a partnership with a viticulture and vinification business.
In June 2022, before the Employment Relations Authority (ERA), the applicant unsuccessfully brought claims including constructive dismissal.
Before the Employment Court, the applicant sought to challenge the ERA determination.
The partnership requested security for costs, partly due to the applicant’s failure to pay the costs incurred in the ERA proceeding.
Allowing the application, Judge Smith awarded the partnership $20,000 instead of the requested amount of $40,000 to balance the interests of assuring the partnership that it could recover its costs and permitting the applicant to pursue his challenge.
The Court of Appeal rejected the applicant’s request for leave to appeal against Judge Smith’s decision.
The applicant applied for leave to appeal directly to the Supreme Court.
While it granted an extension of time for the applicant to apply for leave to appeal, the Supreme Court ultimately refused leave to appeal and ordered him to pay the respondent partnership’s costs of $2,500.
The Supreme Court found it unnecessary in the interests of justice to hear or determine the applicant’s proposed appeal.
The Supreme Court recognised that the applicant required an extension of time because he filed his leave application nearly a year out of time.
The Supreme Court granted the application for an extension of time because the applicant filed a notice of appeal before the Supreme Court shortly after the Court of Appeal of New Zealand had denied leave to appeal.
The Supreme Court noted that it could entertain this appeal only on a question of law.
The Supreme Court ruled that all except one of the applicant’s proposed arguments essentially aimed to assail Judge Smith’s factual findings on whether there was a basis to believe the applicant could not afford costs.
The Supreme Court saw no reason to interfere with those factual findings.
The Supreme Court acknowledged that the applicant raised a legal question by proposing to argue that Judge Smith did not find his case weak before ordering security for costs.
However, the Supreme Court saw insufficient prospects of success warranting the grant of leave. The Supreme Court explained that Judge Smith:
Here are some other recent employment law decisions.
The Employment Court of New Zealand issued a 5 August 2026 interim injunction in favour of an employee suspended by the Public Service Commission, given the proceedings’ novel and complex issues in the intersection of employment law, natural justice, and national security.
In litigation initiated by a former employee against their previous employer, the Employment Court made a 28 July 2026 decision finding no important legal question such that the worker could “leap frog” the investigation straight to an Employment Court hearing.
The Supreme Court of New Zealand issued a 28 May 2026 decision discerning no legal question to consider and no exceptional circumstances to warrant the filing of a direct appeal to it from an Employment Court judgment ordering a former employee to pay security for costs.
Enjoy this story? Read the latest employment and labour law news on the main page!
