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Casual work must be intermittent and irregular

Employers have to be very careful when employing someone on a casual basis.

First, the employer has to ensure that the casual nature of the employment is recorded in writing in the employment agreement.
Second, the employer has to continually, during the employment, monitor the employee’s hours of work.

A truly casual employee is one who is employed on an intermittent and irregular basis.

In other words, apart from, say, rosters being issued for the coming week or month or so, the employee generally doesn't know what his or her hours will be outside that current roster.  The Courts have held, time and time again, that employees who started out on truly casual contracts have become permanent part-time or permanent full-time employees because their hours have changed from intermittent and irregular to consistent and regular.

One such case is Ross v Lazer Tech 2005 Limited [[2012] NZERA Christchurch 122; 21/06/2012; H Doyle].

Mr Ross was employed by Lazer Tech as a casual worker in April 2008.  His written employment agreement and the letter which accompanied it both stated that his employment was casual.

Mr Ross worked regular hours during his employment at the aluminium smelter at Tiwai Point.  On 12 November 2008, Mr Ross had an exchange with a Mr Johnson who was a contractor to and former part owner of Lazer Tech.  After the exchange, Mr Ross heard Mr Johnson speaking by telephone to the manager of Lazer Tech, Mr Booth, about the incident.  Mr Ross confronted Mr Johnson who advised Mr Ross that Mr Ross rubbed him up the wrong way, was incompetent and that Mr Johnson didn't know if he had a job for Mr Ross.

A couple of days later, as Mr Ross was packing up to go home,  Mr Johnson advised him to make sure he took all his gear and tools because he wouldn't be coming back to work.  Mr Ross asked if he was being dismissed and Mr Johnson said that that was up to Mr Booth.

On the following Tuesday Mr Ross was at work when Mr Booth advised him that there was no more work for him and that he was not allowed back on site at the smelter.  Mr Ross asked for a reason but Mr Booth wouldn’t provide one so Mr Ross raised a personal grievance for unjustified dismissal.

The company argued that Mr Ross was a casual employee and that he worked sporadic hours that fluctuated.  The company denied that Mr Ross was dismissed, constructively or otherwise, arguing that as a casual employee the company had simply decided not to re-engage him.

The Authority found that Mr Ross’ employment was more than simply intermittent or irregular.  Mr Ross worked Mondays to Saturdays, usually about 40 hours each week and there was a roster which set out where he would be working and on what jobs.  The Authority agreed with Mr Ross that he expected his employment to continue and that it would have continued had Mr Johnson not complained about Mr Ross.

The Authority held that Mr Ross should have been told what Mr Johnson's allegation was so he could properly respond to it. The Authority found that Mr Ross was not treated with good faith, that his dismissal was unjustified and that the company must pay him six months’ lost wages ($18,275.30) and $6,000 in compensation.

The Employment Relations Act allows for payments of up to three months’ lost wages unless there are exceptional circumstances, so an award of six months’ lost wages is significant.

In relation to whether Mr Ross’ employment was casual, the Authority held:

                            “[23] It is recognised that the nature of employment or working relationship can change over time and if casual at the start can become something more permanent in nature – Jinkinson v Oceania Gold (NZ) Limited [2009] ERNZ 225....

[24] There was reference in Jinkinson to other cases that assist in determining whether employment is truly casual.  Avenues Restaurant Limited v Northern Hotel IUOW [1991] 1 ERNZ 420 is a case where an employee worked an irregular pattern of days but at least two days each week for six months.  The regularity of the work and continuity of employment persuaded the Court that her employment was not casual.  In Barnes v Whangarei Returned Services Association (Inc) [1997] ERNZ 626 it was held that notwithstanding there was a written employment contract defining the relationship as casual, its real nature was changed over time during which the employee was included on a roster and worked regularly three nights a week for several months.  It was found that the pattern of work was sufficiently regular and continuous to make the employment ongoing and not casual …

[26] I find that Mr Ross’s employment ended therefore not by simply the withholding from him of any more work but rather by the termination of his employment on 18 November 2008.”

In relation to the award of six months’ loss of wages, the Authority held:

“[32] After [a] brief period of employment that was not of a permanent nature, but an attempt to mitigate loss, Mr Ross was without employment from January 2010 to September 2011.

[33] I am satisfied that Mr Ross took steps to obtain other employment.  There were of course difficulties given that he was located in the settlement of Otamatata and that there were very limited job opportunities.  Although Mr Ross seeks reimbursement for lost wages for the entire period he was without employment, his claim I find should be limited to a period of six months, as it is unclear to me that the employment relationship would have lasted beyond that period of time.

[34] I have averaged out Mr Ross’s earnings for the period from the fortnight ended 22 June 2008 to the end of employment to arrive at an average weekly amount of hours worked as 37.74.  I have then multiplied those hours by $19.44 for 26 weeks or six months to arrive at a figure of $19,075.30 from which I have deducted the sum of $800 being money earned during this six month period.

[35] I order Lazer Tech (2005) Limited to pay to Brian Ross the sum of $18,275.30 gross being reimbursement of six months’ lost wages under section 123(1)(b) of the Employment Relations Act 2000.”

Also of interest was the Authority’s decision to grant Mr Ross interest on the amount of lost wages.  The Authority awarded interest on the sum of $18,275.30 at the rate of 5% from 1 September 2011 (taking into account Mr Ross’ delay in progressing his claim) until the date of payment.


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