Unjustified dismissal after employee found to be permanent rather than casual...

The Employment Relations Authority has recently accepted an employee’s claim of unjustified dismissal after deciding he was a permanent employee rather than a casual employee.

The employee was originally hired under a casual employment agreement. The casual nature of the employment in the beginning of the employment relationship was highlighted by the employee’s first few pay records. The employee continued to work for the employer for over two years.

When COVID-19 first broke out in New Zealand, the employee became sick with cold and flu symptoms. He called the COVID-19 helpline and was told to self-isolate at home. After notifying his manager the employee was told that he would be dismissed if he did not show up for work the following week. 

The employer and employee exchanged multiple text messages before the employee was dismissed. The employee received his final pay slip two weeks later, and was sent a letter the following month stating that there was no more casual work available for him.

The Authority had to determine two issues. First, whether the employee was a permanent or casual employee and second, whether, if permanent, the employee was unjustifiably dismissed.

An employee may be a permanent employee even if they are employed under a casual contract. The key issue surrounds the true nature of the employment relationship.

In this case, the employee was employed under a casual contract. However, the employee received annual leave and sick days, and was paid for public holidays that he did not work. The employee averaged 35-60 hours of work a week, showing that the employee worked consistently for the employer.

The Authority decided that these aspects meant the employment relationship was one of a permanent nature, despite the employee’s previous rejection of an offer of a permanent employment agreement.

The Authority then had to determine whether the employer had acted as a fair and reasonable employer would have when dismissing an employee. In this case, the employee was not given a chance to provide feedback prior to his dismissal, nor was there any sort of formal dismissal process.

The Authority also decided that the employer’s concerns regarding the employee’s reliability were not well-founded and were therefore unreasonable. These factors led the Authority to the conclusion that the employee was unjustifiably dismissed.

The Authority ordered the employer to pay $8,000 in compensation for hurt and humiliation.

It is important to be aware of the processes required when dismissing an employee. If you are confused about your obligations as an employer, it pays to seek advice from a professional with experience in the area.

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