Employment Relations Authority – Casual employment – Personal grievance – Unjustified dismissal
A key issue in the case was whether the employee was a casual or permanent employee. Her employment status was important to her personal grievance for unjustified dismissal.
The employee worked in a small retail clothing shop owned by the employer. The employee brought a personal grievance against the employer for unjustified dismissal. The employer’s initial justification for the dismissal was that the employee was on a 90-day trial period. However, the employer later claimed that the dismissal was justified because the employee was on a casual employment agreement. The employer argued that because the employee was on a casual contract, they could have no ongoing expectation of receiving work, and therefore no grounds to claim unjustified dismissal.
The Authority determined that the employee was on a permanent rather than casual contract. In the absence of a statutory definition for casual employment, the Authority defined it as “working on an as and when required daily basis” (see para 23). It then looked at whether an as and when required daily basis would make sense for the type of work. The Authority determined that for a small retail shop with consistent opening hours, such as the one in this case, a casual arrangement would not make sense because the employer would need to have a level of certainty that someone is always present and serving (see para 25). The Authority suggested a catering company working irregular events was a business which may genuinely require casual employees (see para 25).
The Authority went on to provide further reasons for the employee being permanent rather than casual:
- Rosters were put up on a wall calendar a month in advance, but then were varied closer to the day (see para 24).
- The employee worked for 12 consecutive weeks for over 20 hours per week with only two weeks as an exception. This had the regularity of permanent part time work (see para 26).
- The employee held a set of keys. This would be unlikely for an employee who had no guarantee of ongoing work (see para 27).
- Although holiday pay being paid as you go suggested casual employment, it was not determinative. This form of holiday pay is used for other forms of employment agreement that are not casual (see para 30).
The Authority found the employee would still have a claim for unjustified dismissal even if they were considered casual. Casual employment does not remove the procedural fairness requirements in s 103A (external link) of the Act. The Authority determined a fair and reasonable employer would have given notice for the dismissal and would have considered restructuring before dismissing the employee (see paras 23, 31).
The Authority ordered the employer to pay $18,112.50 in lost wages, and $18,000 in compensation in addition to costs (see para 57).