mrobins@workplacelaw.co.nz

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When does Casual Employment become "permanent"?


Casual employment is work that is intermittent and irregular.

Casual employment can become permanent employment* if the work becomes consistent and regular.

The real test for whether casual employment has become permanent is whether the employee has a legitimate expectation of ongoing work.

An example from a recent decision of the Employment Relations Authority:

In a recent case called Harris v White Cliffs Forests Limited, Mr Harris was offered "casual" work for "2 to 3 months". Over the next 3 years he worked every working day except when he was on leave.

White Cliffs said he was a casual worker and that his holiday pay was included in his hourly rate. White Cliffs said they had no obligation to offer Mr Harris ongoing work.

Mr Harris said that at some point he had stopped being a casual worker and became a permanent worker. He asked the Employment Relations Authority to decide when that change occurred.

The Employment Relations Authority held that the number of hours Mr Harris worked for White Cliffs did not determine whether he was a casual worker or not. The real test was whether Mr Harris had a reasonable and legitimate expectation of continuing employment.  The Authority said that he did have a reasonable expectation after the end of the first 3 months and that from that time White Cliffs therefore had an obligation to offer him ongoing work.

This decision meant that White Cliffs had to pay Mr Harris (backdated to 3 months after his start date) sick pay, plus holiday pay of 8% on top of the hourly rate that White Cliffs had argued already included his holiday pay.



*We call ongoing work "permanent" but it is not really permanent because all employment can be terminated.