In a recent case, Mastfix, an employer, tried to defend a claim of unjustified dismissal made by a former employee, Mr T, by saying that he was dismissed because of poor performance. Mastix produced documents it alleged were records of written warnings given to Mr T about his poor performance. Mr T said he never received any warnings.
As none of the alleged records were counter-signed, the Employment Relations Authority accepted that Mr T had never seen the documents before and had never been warned, therefore the dismissal was unjustified. Mastfix was ordered to reimburse Mr Taylor for three weeks’ lost wages and to pay him $10,000 in compensation.
During the Authority’s investigation, Mastfix had also alleged that it could terminate Mr T employment at will (that is without reason and without following any procedure) because he was a casual employee. The casual employment agreement which Mastfix produced was again unsigned and undated, so the Authority believed Mr T‘s evidence that he had never had an employment agreement. Furthermore, the payroll records showed that Mr T had worked regular hours and supported Mr. T’s contention that he was a permanent employee rather than a casual one.
Most of us get confused by casual versus permanent employment so here goes my attempt to explain the main differences:
Permanent employees are guaranteed regular work. They might work at different times each week on a roster, but they are guaranteed a minimum amount of hours. This person will get paid for statutory holidays and will accrue paid leave.
Casual employees are not guaranteed any minimum amount of hours of work or any ongoing employment. They are effectively “on call”. Casual employees do not get paid holidays; instead they receive 8% holiday pay every time they are paid.
In this case, Mr T accepted that he had started as a casual hammer hand, but he soon came to have regular guaranteed hours. Mr T had therefore become a permanent employee, so the Authority ordered Mastfix to pay him for the ten public holidays that had fallen during his employment and his outstanding holiday pay.
A change in the status of an employee from casual to permanent is quite common, so it is important to be aware of the difference.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
