Thursday July 9, 2015
The Employment Court has said in Jinkinson v Oceana Gold (NZ) Ltd  ERNZ 225 (EC), that when determining the nature of an employment relationship (casual or ongoing):
“All relevant matters must be taken into account in making that decision and the parties' description of their relationship is not to be treated as determinative.”
What are the characteristics of casual employment? In Jinkinson, the Employment Court referred to a list of factors. These include whether:
• work is allocated in advance by roster
• there is a regular pattern of work
• there is a mutual expectation of continuity of employment
• the employer requires notice before an employee is absent or on leave
• the employee works to consistent starting and finishing times, and
• the number of hours worked each week.
Casual or ongoing?
A casual employee may be engaged on an ad-hoc basis, as cover for staff absences due to illness or annual leave. The employee begins to work a consistent number of hours each week, and the employer requires the employee to be available to work at those times. The changes occur gradually over a period of time, and the fact of the change may not be immediately apparent.
The distinction between casual and ongoing employment is important. If the employer decides, based on the perceived casual employment relationship, not to engage the “casual employee” in the future, the employee may have grounds for raising a personal grievance for unjustified dismissal based on an ongoing employment relationship.
Where there is a dispute regarding the nature of the employment relationship, the Employment Agreement is the primary document relied on by the Employment Relations Authority or the Employment Court. An Agreement that includes provisions regarding: annual performance reviews, an obligation that the employee be available when required by the employer, restraint of trade, redundancy, notice period, sick leave or abandonment of employment, may indicate that the employment relationship is ongoing and not casual.
Casual Holiday Pay
Generally, an employee becomes entitled to annual holidays after 12 months continuous service. While holiday pay is calculated for casual employees in the same manner as ongoing employees, a casual employee by definition cannot complete 12 months continuous service. Casual employees should be paid holiday pay in addition to their normal pay at the time they are paid.
An employer’s obligations, each time a casual employee is engaged, are the same as for any other employee, including occupational safety and health requirements and any other obligation that arises from the employment relationship.
If you have concerns regarding the status of casual/part-time employees, we suggest you immediately have the current employment relationship reviewed. If you intend to engage casual employees in the future, the nature of the employment relationship and the drafting of the Individual Employment Agreement will need careful consideration before the employment starts.
This article was written by Jim Wynyard and appears on the Rotorua Chamber of Commerce Business Now publication - June 2015.
The information contained in this article is general information only, and does not constitute specific legal or other professional advice and should not be relied on as such. Readers should obtain specific advice before making any decisions or taking any action based upon information contained in this document.