Casual v part time employee

An employment message to employers 

Be careful how you manage your "casual" employees - it may be that they are, in reality, permanent part-timers. Before contemplating the termination of any employee's employment for any reason, you should seek advice. 

A casual employee was told that her services would no longer be required and she was "taken off the books" by her employer. A casual worker is someone who is offered work on an as and when required basis and there is no expectation of ongoing work.  On the face of it, one would have thought it was a reasonable decision for an employer to make. 

The employee didn't see it that way and raised a personal grievance for unjustifiable dismissal.  The Employment Relations Authority agreed with the employee and ordered the employer to pay $2,216 for last wages and $4,000 in compensation for humiliation, loss of dignity and injury to feelings (albeit reduced by 20% for some contributory conduct). 

So, where did the employer go wrong?

From the outset, it was agreed between the parties that employment would be on a casual basis when the business required an additional staff member from time to time. This arrangement reflects a relationship of a casual nature. 

However, records indicated that the hours the employee worked varied considerably and over a ten month period showed a regular work pattern.  A roster was in place which outlined which days and times the employee worked.  The employer did not ascertain the employee's availability in advance of the roster as would be expected with a casual employment relationship. The employee was required to give notice of absence, received holiday pay when leave was taken and was paid public holiday pay for the public holidays that she did not work. 

Later the employee's attendance became an issue due to sickness and other outside commitments.  This and the lack of communication made rostering difficult.  The question of the employee's attendance record had never been raised by the employer. 

The employer subsequently terminated the employment arrangement and paid two weeks' wages. 

The Authority found that the employee was not a casual but a permanent part time employee and as such, the actions of the employer constituted a dismissal. 

The casualness of employment altered when the employee

  • was rostered to work in advance
  • worked regular patterns of work, with consistent starting and finishing times
  • had to notify absences or leave
  • was paid public holiday pay and
  • had an expectation of continuity of employment. 

All of which indicate a permanence of employment (albeit may be part time) and therefore subject to the usual disciplinary processes. 

Paddy Battersby ; Battersby HR Consulting ; www.battersbyhr.com ; paddy@battersbyhr.com ; 09 838 6338

24 September 2015
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