How do I manage a casual employee?
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  NZERA Christchurch 122; 21/06/2012. Mr Ross was employed by Lazer Tech as a casual worker in April 2008. His written employment agreement and the letter that accompanied it both stated that his employment was casual.
Mr Ross worked regular hours during his employment at the aluminium smelter at Tiwai Point. One day, 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.
If you need help with employment agreements or arrangements, call Workplace Law on 09 631 5553.