A promise broken
According to the ERA’s recent decision on the matter, Fry had worked at Fire and Emergency New Zealand from 1986 until 2014.
He later returned in March 2022 as a community readiness and recovery advisor.
That year, payroll told Fry he would be accepted into the FireSuper scheme and contributions would begin coming out of his pay.
FireSuper provided eligible employees with greater employer contributions than KiwiSaver.
He then raised a personal grievance for unjustified dismissal with the Employment Relations Authority. Photo / 123RF
Fry also believed he was eligible for the scheme because a colleague and close friend, who is not named in the decision, had been accepted into the scheme in July 2022.
When Fry and his colleague once discussed superannuation, Fry was shown the FireSuper website, which he had not seen before. Fry then checked his superannuation status, only to find he was never enrolled.
Fry emailed payroll, asking which scheme he was part of and was told he was not enrolled in FireSuper, nor was he eligible, and he had been contributing to his KiwiSaver fund.
He responded, stating that other returning employees had been accepted back into FireSuper, so he assumed he had been enrolled.
In a further exchange, he stated that a colleague in a similar role to his had also returned to Fire and Emerge ncy NZ and was accepted back into FireSuper, and this had set a precedent.
A senior people advisor responded to his email, saying eligibility does not include advisors in the community risk and recovery space.
Fry was asked to provide his colleague’s name so they could check why they were accepted.
“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,” the senior people advisor wrote.
Fry shared his colleague’s name, under the assurance that it would not jeopardise his involvement in the scheme.
The colleague then received an email from HR saying he was also not entitled to the FireSuper.
“The Payroll Advisor at the time should not have processed this. I have been advised to stop payments going into FireSuper Fund and set you up to receive Employer Contributions in KiwiSaver,” it read.
Colleagues unable to restore relationship
Fry said the fallout from Fire and Emergency removing his colleague from the scheme was “immensely stressful and devastating”.
He had been a friend and colleague for many years and their working relationship and friendship became very strained.
Fry unsuccessfully tried to resolve things between them.
The senior people advisor told Fry that the colleague’s removal from FireSuper was not supposed to happen, and she apologised.
Fry was entitled to support from the Fire and Emergency welfare team and the relationship problem between Fry and his colleague was referred to a restorative team.
Fry declined to partake in the restorative process until their enrolment in FireSuper was resolved.
In May 2024, changes were made to FireSuper eligibility, and both Fry and his colleague became eligible to enrol.
But their working relationship could not be repaired.
Fry resigned in November 2024, saying Fire and Emergency NZ had failed to address the issues he raised in personal grievances and had not supported him in relation to the alleged breaches.
He then turned to the authority, raising a personal grievance for unjustified dismissal.
The authority found that Fire and Emergency NZ had breached its promise to Fry.
“Fire and Emergency NZ’s failure to keep its promise to Mr Fry was not justified,” authority member Peter van Keulen said in the decision.
“Arguably it was out of Fire and Emergency NZ’s control as eligibility to participate in FireSuper is dictated by the FireSuper trust deed and Fire and Emergency NZ has no ability to approve or remove participants in FireSuper.”
“The answer to this is FENZ should not have made the promise it did. The result is FENZ’s actions were not justified.”
However, van Keulen said a breach of promise was not a constructive dismissal as Fry did not resign at the time of the breach, and he did not resign just because of the broken promise.
“In the circumstances, 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.”
Instead, it was found that Fry suffered harm and loss, for which he was awarded $13,000 compensation.
“Fry described embarrassment at what occurred and for letting down a colleague, feeling isolated and vulnerable, and being seen as untrustworthy at work; Mr Fry says he felt like an ‘outcast’ and even now still doubts his own judgment and does not trust himself with decisions.”
Fire and Emergency NZ told NZME it was reviewing the authority’s decision.
Fry declined to comment.
Brianna McIlraith is a Queenstown-based reporter for Open Justice covering courts in the lower South Island. She has been a journalist since 2018 and has had a strong interest in business and financial journalism.