Am I a casual employee?

by The FindLaw Team

Sometimes people become confused as to exactly which category of employment they fall in to. Most employees are considered permanent employees and may work full-time or part-time. Others, however, are casual employees, usually employed on an ‘as required’ basis. 

There can be a thin line between permanent and casual employment. In some cases, employment may start on a casual basis, but evolve over time to be permanent – even if the parties don’t realise this has happened. 

Distinction between permanent and casual 

The distinction between permanent and casual employment is critical to the application of the Employment Relations Act 2000. If an individual is considered to be a casual employee, the personal grievance procedures available under the Employment Relations Act 2000 (especially for unjustifiable dismissal) are unlikely to apply to the same extent as for permanent employees, simply because casual employment is inherently unreliable and not guaranteed. 

However, casual employees do have the right to a fair termination process, even though on the face of it, an employer may think they can “pick and choose” whether the casual employee is offered work. If the employer considers that the performance of a casual employee is not of the standard required, they are best advised to address the performance issues and follow a fair disciplinary process, which may include termination, rather than keep the employment agreement open and simply not call on the worker when there is work available.

Indicators of status 

The differences between casual and permanent employment are sometimes difficult to determine, and a substantial volume of case law has built up on the issue. In summary, the following principles apply:

·         An employee’s status as casual or permanent is determined by the facts. In the absence of a written employment agreement, and even where an employee is referred to as a casual employee, that person may be considered a permanent employee if they are found to regularly work for the employer. However, where any such employee has signed an employment agreement which designates employment as casual then it will be more difficult, but not impossible, to argue that such employment is in fact permanent.

·         A part-time employee is likely to be classed as a permanent employee if that employee reasonably held an expectation of a continued offer of regular employment by the employer.

·         Initial casual employment may change to permanent employment if there is evidence that, over time, such employment evolved from an irregular and uncertain offer to a regular and certain offer of employment by the employer. 

Guidance 

Guidance was given by the Employment Court in 2009 (in Jinkinson v Oceana Gold (NZ) Ltd), where it was held that:

“The essence of casual employment is that an employment relationship exists only during periods of work or engagement to work and the parties have no obligations to each other in between such periods. Where the employment relationship is ongoing, a wide range of statutory rights and duties, together with some derived from the common law, apply continuously until the relationship is terminated. Those rights include access to the personal grievance process.”  

The Court also noted the importance of understanding what is meant by the terms “casual” and “ongoing” or “permanent”:

“Whatever the nature of the employment relationship, the parties will have mutual obligations during periods of actual work or engagement. The distinction between casual employment and ongoing employment lies in the extent to which the parties have mutual employment related obligations between periods of work. If those obligations only exist during periods of work, the employment will be regarded as casual. If there are mutual obligations which continue between periods of work, there will be an ongoing employment relationship.”  

The Court also said that the strongest indicator of ongoing employment is where the employer is obliged to offer the employee further work if it becomes available, and the employee is obliged to carry out that work.  

In another case (Lee v Minor Developments Ltd t/a Before Six Childcare Centre in 2008), the Court outlined the following characteristics as being those which the courts have used to assess whether employment is casual:

·         Engagement for short periods of time for specific purposes;

·         A lack of regular work pattern or expectation of ongoing employment;

·         Employment is dependent on the availability of work demands;

·         No guarantee of work from one week to the next;

·         Employment as and when needed;

·         The lack of an obligation on the employer to offer employment, or on the employee to accept any other engagement; and

·         Employees are only engaged for the specific term of each period of employment.

Employment agreements 

The Employment Relations Act 2000 does not provide separate requirements for employment agreements for people employed on an ‘as required’ basis, so the general employment agreements requirements will apply.  

However, an employment agreement for a casual employee with no fixed hours would have to be worded so that it is clear what the employment relationship will involve. For example, the employment agreement could:

·         Have “Casual employment: as required” in the title;

·         State that the employee will be told of their duties at the beginning of each assignment, rather than having a job description attached to the agreement (unless the duties will be the same each time the employee is called in to work, eg working at a preschool);

·         State that there is no guarantee of continuous or regular employment and that the employee has the right to accept or refuse employment that is offered by the employer;

·         State that the assignment may be varied, shortened or terminated by the employer without notice being given to the employee;

·         State that the employee has no right to compensation for redundancy;

·         State the hourly rate for the employee, that the employee will only be paid for the hours they actually work and that they are not entitled to any remuneration when they are not working on an assignment;

·         State how their right to holiday pay or annual leave under the Holidays Act 2003 will be met (eg on a “pay as you go” basis); and

·         State what their rights are in relation to public holidays, sick leave, and bereavement leave under the Holidays Act 2003.

This article is intended as a general overview only. If you have any questions or need more information, please seek the help of a legal practitioner. 



We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!


 
 
We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.
Feedback