Shelley Greer: What's a casual employee?

Shelley Greer

Dan needed a bit of extra help on the farm so he decided to employ Mike on a casual basis.

Mike signed a Casual Employment Agreement.

For a few months Dan called Mike only when he needed help and, if Mike wasn't busy, Mike would work for a couple of days on the farm.

Over the calving season Dan became increasingly busy and consequently Mike was given a roster and was working almost every day on the farm. Mike gave up his other casual work as a cook as he had no time for it.

At the end of the year, Dan's son returned from University and started working on the farm. Dan didn't really need Mike anymore so he told him that his employment had ended.

Dan thought that he didn't have to give Mike notice as he was a casual employee. Mike was annoyed as he did not have another job lined up.

Mike went to see his lawyer and raised a personal grievance against Dan for unjustified dismissal. Does Mike have any grounds to do this?

Many employers employ people who they consider to be "casual employees". However, there can be a fine line between permanent and casual employment. It is very common for an employee to start work on a casual basis but for that work to morph over time to being more permanent.

It is important that employers and employees understand the nature of their employment relationship. Because casual employment is generally unpredictable and uncertain, the personal grievance procedures that are available under the Employment Relations Act 2000 will not apply to the same extent as they would for a permanent employee.

This means that if you attempt to terminate the employment of a casual employee who is not truly casual without using the correct procedures, you run the risk of that employee raising a personal grievance for unjustified dismissal, among other things. So how do you work out whether your employee is a casual or permanent employee?

Casual employment is just that - intermittent, with no fixed hours or days of work. A casual employee is free to say they are not available to work a particular shift or day, just as their employer can choose not to call on them. The relationship between the parties is the crucial test - not what may be set out in the Employment Agreement.

Other characteristics recognised by the Employment Court are:
• Engagement for short periods of time for specific purposes.
• A lack of regular work pattern.
• The employment is dependent upon the availability of work demands.
• There is no guarantee of work from one week to the next.
• The employment is "as needed".

What Dan should have done is transferred Mike to a permanent employment agreement as his work became more predictable and certain, or employed Mike for a fixed term over the calving season.

To increase the likelihood that your casual employees would be deemed truly casual by the Court, there are a number of clauses that can be included and/or modified in their employment agreements. To review and amend your existing employment agreements, get in touch with us at sue@gallie.co.nz or shelley@gallie.co.nz