Overview

On 3 September 2026, the Employment Relations Authority issued its determination in Khan v Chief Executive of the Ministry for Primary Industries [2026] NZERA 619.

Member Greening found that Mujahid Khan, a senior quarantine officer employed by the Ministry for Primary Industries for 18 years, had been unjustifiably dismissed. The Authority ordered his permanent reinstatement and awarded $22,000 for humiliation, loss of dignity, and injury to feelings, together with $55,080 gross in lost remuneration, subject to possible amendment.

The determination provides a valuable reminder that the length and apparent thoroughness of a disciplinary process are not decisive. An employer may hold several meetings, interview witnesses, disclose information, and seek responses, but still fall short if it does not objectively examine the evidence, accurately formulate its factual findings, and match the outcome to the conduct actually established.

It also shows that procedural and substantive justification cannot be separated neatly. A weakness in the way an employer evaluates evidence may affect both the reliability of its findings and whether dismissal was a proportionate response.

Background

Mujahid Khan was employed by MPI as a senior quarantine officer under a collective agreement between MPI and the New Zealand Public Service Association.

In June 2025, two employees made complaints about him.

The first complaint arose from field work on 10 June 2025. A colleague alleged that Mujahid Khan had pressured her to accompany him to a friend’s house for lunch, although she had indicated that she had her own lunch and needed to return to the office. The complaint also raised concerns about his use of an MPI fleet vehicle for the visit.

The second complaint arose on 12 June 2025. A colleague alleged that Mujahid Khan had become agitated and spoken to him in a raised voice after being asked to continue working.

MPI began its investigation on 25 June 2025. Its process included two investigation meetings with Mujahid Khan, interviews with six witnesses, disclosure of interview notes, written responses, a preliminary outcome, and a further disciplinary meeting.

On 6 October 2025, MPI dismissed Mujahid Khan with immediate effect. It treated the findings under the first complaint as serious misconduct and the finding under the second complaint as misconduct.

Mujahid Khan raised a personal grievance for unjustified dismissal.

In May 2026, the Authority granted interim reinstatement.

The substantive determination then addressed whether the dismissal was justified and whether reinstatement should become permanent.

The test under section 103A

Section 103A of the Employment Relations Act 2000 asks whether the employer’s actions, and the way the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time.

In applying that test, the Authority must consider whether the employer:

1. • sufficiently investigated the allegations, having regard to the resources available;

• • raised its concerns with the employee;

• • gave the employee a reasonable opportunity to respond; and

• • genuinely considered the employee’s explanation before deciding to dismiss.

The Authority also referred to two important evidential principles.

An employer must have clear evidence on which a reasonable employer could safely rely, or must have made reasonable inquiries that gave it grounds for believing, on the balance of probabilities, that the employee was at fault. Where the charge is serious, the evidence supporting it must be correspondingly convincing.

These principles were important because MPI had classified the findings under the first complaint as serious misconduct and had summarily dismissed Mujahid Khan.

Complaint 1: the lunch visit and fleet vehicle

Relevant evidence was not sufficiently weighed

Two of Mujahid Khan’s friends were present at the house. One provided a written statement describing the colleague as appearing relaxed and the visit as friendly and courteous.

The Authority identified the critical issue as whether MPI had taken that statement into account when reaching its findings. MPI’s final findings did not refer to it. The Authority ultimately found that MPI had not fulfilled its obligation to weigh all the evidence relevant to a charge capable of resulting in summary dismissal.

This does not mean that an employer must accept a supporting witness’s account. Nor must every item of evidence receive equal weight.

The better practical lesson is that material evidence which points away from the proposed conclusion should be expressly assessed. If it is rejected or given limited weight, the decision-maker should be able to explain why.

The final finding went beyond the underlying account

MPI found that the complainant had “repeatedly told” Mujahid Khan that she did not want to attend the lunch.

The Authority considered that this formulation did not accurately capture the written complaint. The complaint recorded that the colleague repeatedly said she needed to return to the office, while Mujahid Khan progressively reduced the proposed visit from 20 minutes to 10 minutes and then five minutes. It also recorded that he asked whether the visit was “okay”.

The Authority found that MPI had focused on the colleague being asked multiple times without adequately considering the full dialogue. It was therefore not satisfied that MPI had clear evidence, or had made sufficient inquiries, to establish the alleged breach of the collective agreement on the balance of probabilities.

For decision-makers, this is an important drafting lesson. The language of a preliminary or final finding should not become more categorical than the evidence on which it rests. Small changes in wording can materially alter the nature and seriousness of the conduct found.

That is particularly important when distinguishing between:

• • discomfort and expressed refusal;

• • poor judgement and deliberate wrongdoing;

• • an employee’s perception and the alleged actor’s knowledge of that perception; and

• • misconduct and serious misconduct.

MPI did not adequately address possible prior influence

Mujahid Khan argued that the complainant’s perception of him may have been influenced by comments made by other colleagues before they worked together.

The opening of the written complaint included the observation: “they weren’t kidding about this man being inappropriate”. The Authority concluded that comments from colleagues had, at a minimum, unconsciously influenced her view of Mujahid Khan. It was not satisfied that MPI had sufficiently weighed this consideration.

The significance of this finding should not be overstated. The Authority did not find that the complaint was fabricated or that the complainant’s reported feelings were not genuine. The point was that, once prior influence had been raised and was apparent from the complaint itself, MPI needed to consider its potential relevance objectively.

The serious misconduct classification was not clearly explained

MPI concluded that the substantiated conduct breached clause 8.7 of the collective agreement and amounted to serious misconduct. However, the Authority found that the dismissal letter did not clearly identify which category of serious misconduct under MPI’s own policies applied. Nor did it adequately explain how the conduct met that category.

This is more than a drafting technicality. Before dismissing for serious misconduct, an employer should be able to identify:

1. • the precise conduct found to have occurred;

• • the contractual or policy obligation breached;

• • the basis on which the conduct meets the applicable definition or category of serious misconduct; and

• • why the conduct is sufficiently serious to warrant dismissal without notice.

Labelling conduct as serious misconduct does not make it so. The reasoning connecting the facts, the relevant standard, and the proposed consequence must be visible.

A new justification appeared in the final decision

MPI’s final letter stated that its decision was further supported by a “dysfunctional and broken working relationship”. It referred to Mujahid Khan’s challenges to witness credibility and his concerns that the complaint had been engineered.

The Authority found that the alleged breakdown had not been put to him as an issue for investigation. He had not been told that it might influence the disciplinary outcome and therefore had no proper opportunity to respond to it before the decision was made.

Employers should review a proposed outcome letter for any reasoning that was not contained in the allegations, preliminary findings, or other concerns already raised with the employee. If a new consideration is material to the outcome, the process should pause so the employee can respond.

A final decision letter should record the reasoning already consulted on. It should not introduce a further basis for dismissal.

Policy wording had to be considered alongside workplace practice

The fleet vehicle policy stated that MPI vehicles were for conducting MPI business and were not available for private use.

MPI accepted that the policy did not expressly prohibit employees from using fleet vehicles to collect lunch while undertaking field inspections. It also accepted that employees took breaks at cafés and parks because transitional facilities did not always have suitable amenities. MPI nevertheless concluded that travelling nearly 20 minutes in the opposite direction to have lunch at a friend’s house was unreasonable.

Mujahid Khan said he had not received training or guidance about the distinction between permissible and private use in that context. The Authority found no evidence that MPI had genuinely considered that submission. It also found that MPI should have considered how other employees used fleet vehicles in comparable circumstances because the limits of acceptable use were shaped by custom and practice.

This does not mean that a common practice automatically overrides a written policy. It does mean that an employer may have difficulty treating conduct as dismissible where:

• • the policy is open to more than one reasonable interpretation;

• • the practical limits have not been explained;

• • workplace conduct has created a different or less certain expectation; and

• • comparable conduct by other employees has been accepted or overlooked.

Complaint 2: sufficient evidence, but a disproportionate outcome

The Authority reached a different conclusion about the raised-voice incident.

MPI had interviewed several witnesses who were present. Although it did not interview one other potential witness, the Authority found that MPI had sufficient evidence to conclude that Mujahid Khan raised his voice in an agitated and aggressive manner. Mujahid Khan had also accepted that he was direct and assertive and that others might have perceived his tone differently.

The investigation into this complaint was therefore sufficient. The difficulty was the consequence.

MPI classified the conduct as misconduct rather than serious misconduct. Its own guideline stated that misconduct would generally result in a warning. The Authority found that a fair and reasonable employer could have issued a warning, but that dismissal was not a proportionate response to this incident.

This finding is particularly useful where an employer is considering several allegations together. Decision-makers should identify what outcome is justified by each substantiated allegation. If the allegation said to justify dismissal is not established, the employer cannot necessarily rely on the remaining, less serious conduct to preserve the dismissal.

Remedies

Compensation and lost remuneration

The Authority accepted that the dismissal had caused Mujahid Khan considerable stress, financial hardship, loss of dignity, and a negative effect on his wellbeing. The impact was amplified by his 18 years of service and the long-standing relationships he had developed at MPI.

It awarded $22,000 under section 123(1)(c)(i) of the Act.

The Authority also found that, but for the dismissal, Mujahid Khan would have remained employed throughout the period for which he claimed lost remuneration. After accounting for earnings from other employment, it awarded $55,080 gross. The parties were granted leave to advise the Authority if that figure required amendment.

No reduction for contribution

The Authority acknowledged that Mujahid Khan had accepted an error of judgement. It also found that a warning would have been justified in relation to the second complaint.

However, it concluded that his particular use of the fleet vehicle and his honestly held belief that the colleague had agreed to attend the lunch were not blameworthy or culpable. It declined to reduce his remedies under section 124.

Permanent reinstatement

Mujahid Khan had already returned to work under the interim reinstatement order. By the time of the substantive determination, he had regained the statutory warrant required for the role and had been carrying out its functions since May 2026.

MPI argued that permanent reinstatement was neither reasonable nor practicable, relying on an asserted breakdown in trust and confidence, Mujahid Khan’s criticisms of the process, the high-trust nature of his role, the earlier revocation of his warrant, and the possible effect on other employees.

The Authority did not accept that the claimed loss of trust and confidence had been established. It found that Mujahid Khan had been entitled to raise concerns about the investigation and had engaged with MPI constructively rather than undermining the employment relationship.

The mobile and rotational nature of his role was also relevant. He worked across several facilities and was not then working at the same location or on the same shift as the complainants and witnesses. The possibility of future interaction did not, by itself, make reinstatement unreasonable or impracticable.

The Authority ordered MPI to reinstate Mujahid Khan permanently to his former position or to place him in a position that was no less advantageous.

Practical lessons for employers and HR teams

1. An extensive process is not necessarily a sufficient one

The number of meetings, interviews, and documents will not cure a failure to assess the evidence objectively. The real question is whether the investigation was capable of producing reliable findings.

2. Prepare an evidence map before reaching preliminary findings

For each allegation, identify the evidence that supports it, the evidence that cuts against it, any material inconsistency, and any further inquiry required. This helps prevent contrary evidence from disappearing from the final analysis.

3. Keep findings tied closely to the source material

Compare each proposed finding with the complaint, interview notes, witness statements, and the employee’s response. Avoid stronger language unless the evidence independently supports it.

4. Separate the factual finding from its classification

First decide what happened. Then identify the obligation breached. Only after that should the employer decide whether the conduct amounts to misconduct, serious misconduct, or no disciplinary breach.

5. Do not use the outcome letter to add a new reason

If loss of trust and confidence, lack of insight, reputational risk, or damage to working relationships will affect the decision, put that concern to the employee before reaching the final outcome.

6. Consider custom and practice where a policy is unclear

Ask how the policy has been communicated, how comparable situations have been handled, and whether the employee had a reasonable basis for understanding that the conduct was permitted.

7. Assess the appropriate outcome for each substantiated allegation

Where several allegations are considered together, record what consequence each allegation could independently support. This protects against an excessive outcome if the most serious allegation is not established.

8. Treat loss of trust and confidence as a conclusion requiring evidence

An employee does not necessarily destroy trust by contesting allegations, challenging witness accounts, or raising concerns about an investigation. Employers opposing reinstatement must identify a genuine and factually supportable obstacle to restoring the relationship.

Final comment

Khan v Chief Executive of the Ministry for Primary Industries [2026] NZERA 619 illustrates the difference between administering a disciplinary process and exercising genuine disciplinary judgement.

MPI had undertaken many of the visible steps associated with a substantial investigation. The dismissal nevertheless failed because the Authority was not satisfied that relevant evidence had been sufficiently weighed, that the serious misconduct conclusion was properly connected to MPI’s own policies, or that the outcome was proportionate to the conduct established.

For employers, the safest final check is not simply, “Have we completed every step?” It is: Does the evidence support the precise findings we are making, have we fairly addressed the employee’s explanation, and is the proposed outcome one a fair and reasonable employer could impose on those findings?

Need support? If you would like assistance with any employment matter relating to workplace investigations, or would like your policy reviewed, please get in touch with our team. Email admin@cmalaw.co.nz or phone 03 211 0153.

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.