Monique Mackie is a Special Counsel in the Private Client, Trusts, Estate Planning & Asset Protection team at Glaister Keegan. She has over twenty years’ experience practising in the area of Trusts and Personal Asset Planning. Prior to specialising in this area of practice, she also worked in the tax team of a large New Zealand law firm. This experience allows Monique to bring an understanding of structuring and commercial considerations when advising clients. Monique prides herself on being approachable, caring and professional while providing expert legal advice on such an important area of law for individuals and families. Frank Chan is a Senior Associate in the Private Client, Trusts, Estate Planning & Asset Protection team at Glaister Keegan. Frank has built a diverse legal career spanning residential and commercial property, trusts, wills, estates, and banking and finance law. Over the years, Frank has had the privilege of advising families, small‑to‑medium businesses, family trusts, estates, property developers, and financial institutions. He takes pride in offering practical, effective legal advice that empowers clients to achieve their goals, whatever they may be.
Several changes impacting on employer/employee relationships have been introduced under the Employment Relations Amendment Act 2026 with effect from 21 February 2026. New Remuneration Threshhold for Unjustified Dismissal Claims: A new provision has been implemented whereby employees earning more than $200,000 per year will no longer be able to raise a personal grievance for unjustified dismissal, or unjustified disadvantage relating to the dismissal. It is necessary to be aware that the $200,000 annual income threshold is based on total remuneration - this includes not only salary but also bonuses, commissions, share-related benefits and other allowances actually paid in the year before dismissal. Employers are no longer required to comply with the usual unfair dismissal procedures, such as providing reasons or following good faith obligations, when dismissing high earner employees. Those employees do still retain rights to bring grievances on other grounds (eg discrimination, harassment, etc). On a practical level, there is a transition period of 12 months for current employees, before the change takes effect, and even after that initial period the threshold does not automatically override existing terms and policies in employment agreements. The Act does allow parties to opt out of the new provisions. Action: Employers and employees affected by the changes should look to renegotiate the terms of their employment agreements before the end of the transition period if appropriate. Unless there are specific provisions imposing obligations on the employer to follow a fair and reasonable process and have justifiable reason for termination, the employee will be subject to termination at will. It is however still possible for parties to opt out of the new sections under the Act and to allow an employee to retain the right to claim unjustifiable dismissal. Another option is to look at an extended notice period so an employee will have a reasonable time in which to look for a new job. Changes to Justification for Dismissals and Reduction in Remedies: The new law introduces stronger consequences where an employee’s conduct has contributed to a personal grievance. The amendments provide that contributory conduct can significantly reduce or eliminate remedies that were commonly previously awarded. Minor procedural defects will no longer automatically result in a dismissal being unjustified, unless the defects result in unfair treatment. If an employee’s own behaviour contributed to the situation, for example misconduct, dishonesty, or refusal to obey reasonable instructions, the compensation which might be awarded may be reduced by up to 100%. Where the actions of the employee amounted to serious misconduct then the Employment Relations Authority or Employment Court will not award any remedy at all. Contractor v Employee – New “Gateway” Test: The amendment aims to provide more upfront certainty for employers and workers to determine whether they are a contractor or an employee. The historical position has been that Courts (or the Employment Relations Authority) looked at the real nature of the working relationship between the parties to determine the worker’s status. The Employment Relations Act now sets out prescribed criteria that, if met, will recognise a worker as a specified contractor and exclude them from the definition of an employee. The key criteria are: There is a written agreement specifying that the worker is an Independent Contractor (or not an employee); The worker is not restricted from performing work for others; The worker is not under control as to how and when the work is done, or is allowed to sub-contract the work; The business/employer cannot terminate the arrangement if the worker turns down additional work; The worker had a reasonable opportunity to seek independent advice before entering into the agreement. If any of the gateway test criteria are not met, the existing common law test of employment status will still be used. Conclusion – Action: In light of the changes which have been introduced it will be important to review and amend terms of existing employment agreements, particularly for employees on or approaching the high threshhold remuneration level, within the next 12 months. When entering into a new arrangement to engage a worker or to undertake work, consider whether the criteria are met to be defined as an independent contractor rather than employer. When actions or conduct of an employee bring disciplinary action into consideration, take into account whether the employee’s behaviour is of such a level that it may impact on the justification for dismissal.
The Circumstances Wimax New Zealand Limited (“Wimax”) and the Fuge family (“the Fuges”) own properties that share a common driveway on land owned by Wimax, which is subject to a right of way in favour of the Fuges. The right of way area is about 6.2 metres wide. A sealed driveway was formed on the right of way in the early 1960s, which does not take up the right of way’s entire width. An easement instrument was registered in 1964 and was updated in 2017 without making any changes to the right of way area itself. A number of historical structures owned by Wimax encroached on the right of way area, but not on the sealed driveway. In 2018, the Fuges discovered this fact and requested that Wimax remove them. Wimax declined to do so, and the dispute was referred to arbitration. The Dispute It was agreed that for the Fuges to have a cause of action for nuisance, Wimax’s structures needed to substantially interfere with the Fuges’ use the right of way for its intended purpose. It was also agreed that neither the Fuges nor the previous owners of their land had any difficulties in using the sealed driveway to access their property, despite the encroachment of the structures on the right of way area. The arbitrator found in favour of Wimax, but on appeal the High Court found in favour of the Fuges. Both parties took the matter to the Court of Appeal. At the Court of Appeal the judge noted that the arguments between the parties had evolved into a question of whether the Fuges were entitled to succeed in a claim for nuisance in circumstances where Wimax’s structures did not interfere with the current use of the right of way, but might impact the Fuges’ possible future plans to develop their property (the Fuges argued that the presence of Wimax’s structures would prevent a widening of the sealed driveway). The Court of Appeal reversed the High Court’s decision, finding that the Fuges would only have a cause of action in nuisance if Wimax’s structures: (a) substantially interfered with the Fuges’ use of the right of way, and (b) interfered with the Fuges’s use of the right of way at the time of the offending action . Since neither of the above applied, the Court of Appeal reversed the High Court’s decision and found in favour of Wimax. The Fuges have appealed to the Supreme Court, who will address the question of whether it is necessary to decide the issue by reference to the Fuges’ present requirements, and not the “reasonable possibility of future development.” The Supreme Court heard the appeal on 17 February 2026, but as at the time of writing has yet to issue its judgment. Takeaways The mere presence of the structures on the easement area, even though they were found not to interfere with the neighbours’ easement rights, has led to lengthy and costly litigation and has no doubt degraded the relationship between the neighbours. The Court of Appeal emphasised that its analysis of whether there was substantial interference with the Fuges’ use and enjoyment of the right of way was one of “fact and degree” – in other words, something not necessarily cut-and-dried or immediately obvious to everyone involved. Although Wimax was successful at the Court of Appeal and may still prevail at the Supreme Court, it would be prudent for landowners to avoid encroachments on easement areas, where possible. If you have land that is either burdened by, or has the benefit of, a right of way or any other type of easement, it is vital that you understand its terms, your rights, and your obligations. Talk to the Property Team at Glaister Keegan if you have any questions or concerns about your own property.