Dismissed worker assailed order of security for costs in employer’s favour
The New Zealand Supreme Court saw no legal question to consider and no exceptional circumstances warranting the filing of a direct appeal to it from an Employment Court judgment ordering a former employee to pay security for costs.
The applicant was an employee of Aurecon New Zealand Ltd, the respondent in Dowlut v Aurecon NZ Ltd [2026] NZSC 68. In Aurecon’s 2023 performance review process, she received a low performance rating.
Rejecting the assessment, the applicant alleged racism and bullying. Aurecon tried to implement a performance improvement process. However, matters escalated when she refused to participate.
Aurecon removed the applicant from a major project. A hospital then admitted her due to what she described as a near-death medical incident due to bullying and harassment she allegedly experienced during her employment.
Aurecon initiated a disciplinary process. Asserting that her health affected her ability to engage, the applicant did not attend disciplinary meetings and gave limited written feedback. On 22 September 2023, Aurecon dismissed her.
Before the Employment Relations Authority, the applicant filed a statement of problem that claimed unjustifiable dismissal and other personal grievances. On 1 July 2024, the Authority dismissed all her claims.
Before the Employment Court, the applicant challenged the Authority’s decision. She also brought a second challenge concerning the Authority’s “dismissal of frivolous or vexatious proceedings.” Aurecon applied for security for costs amounting to $10,000.
On 27 November 2024, the Employment Court fixed security for costs at $5,200. The Employment Court urged the applicant to withdraw her second challenge, which it considered unsustainable.
The Employment Court explained that it would hear the applicant’s claim de novo and that the Authority had not dismissed her claim as frivolous or vexatious.
On 13 February 2026, the Court of Appeal denied leave to appeal against the Employment Court judgment. The applicant applied for leave to appeal against the Employment Court’s November 2024 decision and the appeal court’s February 2026 judgment.
The applicant also sought an extension of time in connection with the Employment Court judgment. In her proposed appeal against the Employment Court decision, she argued that the judge:
The Supreme Court of New Zealand granted the applicant an extension of time to apply for leave to appeal against the decision of the Employment Court of New Zealand.
However, the Supreme Court declined the applicant’s request for leave to appeal against the Employment Court judgment fixing security for costs and the decision of the Court of Appeal of New Zealand. The Supreme Court ordered her to pay the respondent $2,500 in costs.
Regarding the applicant’s proposed appeal against the appeal court judgment, the Supreme Court ruled that it lacked the jurisdiction to hear an appeal against the appeal court’s refusal to grant leave to appeal to that court.
Next, the Supreme Court found it appropriate to extend the time for the application for leave to appeal against the Employment Court decision because the applicant timeously filed her application after the delivery of the appeal court judgment.
Regarding the applicant’s proposed appeal against the Employment Court judgment, the Supreme Court held that it had the jurisdiction to entertain a direct appeal against an Employment Court decision in exceptional cases.
However, the Supreme Court emphasised that the applicant’s argument fundamentally addressed the judge’s application of settled principles to the facts in this matter.
