Remedies Reduced to $0: Contributory Conduct in Employment Disputes
An unjustifiably dismissed paint shop employee walks away with nothing but a public record of his workplace sexual harassment.[1]
Keith Gorrett was immediately dismissed after admitting to allegations of sexual harassing a young female employee. The Employment Relation Authority found that the lack of disciplinary process rendered the dismissal unjustifiably and awarded $12,000 in compensation for hurt humiliation.
This “win” was short lived, as the remedies were reduced to zero as Gorrett’s conduct was both blameworthy and “wholly contributed to the situation giving rise to the dismissal”. The Authority member’s determination said that awarding a remedy would be a breach of the Authority’s obligation to act in accordance with equity and good conscience.
The case serves as both a timely illustration of how the new contribution provisions may operate in practice, and a cautionary tale of the risks employees face when pursuing claims on poor advice from “no win, no fee” advocates.
2026 Amendment to the Employment Relations Act
This decision was based on a dismissal occurring almost an entire year prior to the recent amendments to the Employment Relations Act relating to contribution and remedies. Prior to this amendment, 100% reduction in remedies to zero was rare, but not impossible, as demonstrated by the Gorrett case.
For dismissals or actions after 21 February 2026, if an employee’s actions contributed to the situation giving rise to the PG, the remedies of reinstatement and compensation are not available.[2] In situations where that contribution amounts to serious misconduct, no remedies at all are available.[3]
These amendments are designed to catch the type of conduct seen in Gorrett, but it remains to be seen what the practical implications of the amendments will be given the Authority has demonstrated their willingness to use their discretion to this effect previously.
The real “cost” of no win, no fee
Many employment advocates offer a “no win, no fee”, to ease the minds of often recently unemployed folk who fear being hit with a huge bill for legal fees and nothing to show for it. It sounds like an appealing option to many but often the real cost is the consequences of poor advice.
Gorrett is an excellent example of a dismissal which while unjustifiable prima facie, was extremely unwise to pursue, in light of the clear evidence of sexual harassment. It demonstrates a clear lack of consideration for the serious consequence of the publication of the employee’s conduct once the determination was released.
Lawyers are bound by professional obligations which require them to act in the best interests of their clients and to provide competent advice. Advocates are not bound by these obligations and currently there is no pathway to hold advocates accountable for their practice.
Workplace Relations Minister Brooke Van Velden has finally responded to years of concerns regarding employment advocates by opening a consultation, urging people to share their experiences with employment advocates. The consultation runs until 31 July 2026 and can be found here.
Whatever action may follow from the government’s call to action, Gorrett is a useful reminder that poor advice can carry consequences well beyond legal fees. Sometimes the real cost of a “no win, no fee” claim is a public determination that does far more harm than good.
[1] Keith Gorrett v Skibo Limited [2026] ERA 241.
[2] Employment Relations Act 2000 s 123C.
[3] Employment Relations Act 2000 s 123B.