With so many recent changes to employment law, one amendment has somewhat flown under the radar. The Employment Relations Amendment Act 2026 made employee obstruction of a workplace investigation or disciplinary process a mandatory consideration in the justification test, rather than merely a factor relevant to remedies.
What’s changed?
Section 103A(3)(e) of the Employment Relations Act 2000 (Act) now requires the Employment Relations Authority or Employment Court to consider whether an employee obstructed their employer from carrying out a fair process. This sits alongside the familiar considerations of whether the employer investigated sufficiently, raised concerns, and gave the employee a reasonable opportunity to respond.
Previously, if an employee obstructed a workplace investigation or disciplinary process, it was relevant to whether any compensation or other remedies should be reduced. That is still the case. However, employers can now also rely on an employee’s obstruction as a reason why they may not have been able to comply fully with some of their procedural or substantive obligations during the process.
What does obstruction look like?
Perhaps the clearest example comes from Kilpatrick v Air New Zealand Ltd. Ms Kilpatrick, a flight attendant, was alleged to have engaged in aggressive and disrespectful conduct. She refused to engage with the disciplinary process despite Air NZ suggesting eight alternative meeting dates over several months. She also:
- Withdrew her contact details from the company’s systems and replaced them with a post office box
- Hung up on a manager who tried to contact her, and
- Refused to respond substantively to the allegations.
Judge Perkins found she was “obstructive” and “deliberately tried to frustrate the whole process”.
In other cases, the following behaviour has also amounted to obstruction:
- Consistently lying throughout an investigation and producing fabricated evidence.
- Destroying correspondence from the employer (such as throwing a disciplinary letter in the fire and then telling the employer about it).
- Repeatedly refusing to attend disciplinary meetings and making unsubstantiated counter-allegations to delay the process.
What does this mean in practice?
Previous case law suggests the Authority or Court will have little difficulty applying this consideration where employees actively and deliberately set out to frustrate a process, whether this is by refusing to attend meetings or using stonewalling tactics.
However, employers should be somewhat cautious. This amendment is still relatively untested, and employers have been criticised in the past for being too quick to label an employee’s conduct as obstruction, particularly where employees have provided medical certificates or requested further information. Employers must be able to demonstrate a clear trail showing an attempt to run a fair and reasonable process that has been thwarted by the employee.
The bottom line
Employees who deliberately obstruct a workplace process now face materially greater consequences. However, this does not absolve employers of their obligation to act fairly and reasonably. It has simply been rebalanced.
For further information or assistance on the above, or any other employment law matters, please contact our specialist Employment Law Team.
