The Advocate | Issue 372 | April 2026

In Fry v Fire and Emergency New Zealand [2026] NZERA 116, the Employment Relations Authority considered the issue of a broken promise to an employee, and whether that broken promise could amount to an unjustifiable disadvantage. 

Mr Fry was employed by Fire and Emergency New Zealand (“FENZ”) from 24 January 1986 to 17 November 2014. He returned to work for FENZ in March 2022 as an Advisor Community Readiness and Recovery. 

After returning to work for FENZ, Fry applied to be enrolled in the New Zealand Fire Service Superannuation Scheme, FireSuper, in June 2022. In January 2024, Fry discovered that he was not enrolled in FireSuper, despite being told by FENZ that he had been accepted.

Fry raised the issue with FENZ. In particular, he told FENZ that he believed he was eligible to join given the eligibility requirements, as his friend and colleague who was in almost identical circumstances, had been accepted into FireSuper. He also believed this because FENZ had told him it had accepted him into FireSuper in July 2022. 

In response, FENZ confirmed Fry was not eligible and asked for the name of the friend and colleague that told Fry he would be eligible (because of his own eligibility). The correspondence from FENZ further stated that “I just wanted to mention that I will not use that person’s name as a way to get him or her removed from NZ FireSuper. If you are worried that revealing their name may put that at risk, I can say it won’t”. On receiving the assurance, Fry provided his friend and colleague’s name, TEP, to FENZ. We note that TEP’s name has been anonymised in the determination.

TEP then received an email from FENZ advising them that it had been discovered that they had joined FireSuper when not eligible to do so, and that payments to FireSuper would cease and instead they would receive employer contributions to KiwiSaver. 

This resulted in TEP being upset at Fry and FENZ for his removal from FireSuper. Fry said the fallout of this was immensely stressful and devastating, and his relationship with TEP had become very strained. In the end, Fry accepted a secondment to another position so that he would no longer have to work with TEP.   

Fry raised claims against FENZ for:

• a personal grievance for unjustified disadvantage due to FENZ not enrolling Fry into FireSuper in July 2022 when it told him he was eligible to join; 
• A personal grievance for unjustified disadvantage when FENZ failed to keep its promise to Fry that if he named the colleague that told him he was eligible for FireSuper, that colleague would not be removed from FireSuper; and 
• that he was constructively dismissed. 

The claim that Fry had suffered an unjustified disadvantage arising from misleading advice around his eligibility to be enrolled in FireSuper was determined to be out of time, and therefore the Authority did not have jurisdiction to consider it further. 

However, the Authority determined that FENZ did in fact promise Fry it would not use TEP’s identity to have him removed from FireSuper. Failing to keep its promise was an unjustified action and it disadvantaged Fry, as it caused a breakdown in his working relationship with TEP and damaged his reputation with other staff. 

While the Authority determined that FENZ did breach a duty owed to Fry (in failing to keep its promise to him), that breach was not sufficient to support a claim of constructive dismissal as Fry did not resign at the time of the breach, and he did not resign only because of the broken promise. Furthermore “the breach of duty was not sufficiently serious to warrant resignation, it was not foreseeable that Mr Fry would resign in response to the broken promise and Mr Fry did not resign in response to the broken promise”. 

Fry was awarded $13,000 compensation for humiliation, loss of dignity and injury to feelings, which reflected the personal and professional fallout from the situation. 

This case highlights that even where an employee does not have a legal entitlement to something, an employer can still unjustifiably disadvantage the employee where they provide an assurance to an employee and that assurance is broken.