When is ‘casual’ employment truly casual?

The Waimakariri District Council was recently in trouble for terminating an employee that it thought was ‘casual’ (McGregor v Waimakariri District Council).

The employee in this case worked as an Animal Control Officer, and was initially employed on a temporary basis to replace a staff member who was away on annual leave. The employment agreement clearly stated that the work was casual and to be on an ‘as and when required basis’. However, the employee then worked consistently for approximately two hours each morning, 5 days per week. She also continued to work for the Council for longer than the agreed period and the arrangement continued after the other employee returned to work. A meeting was then held about the employee’s continued employment and she was given a letter which confirmed a continued employment relationship for a few months and said that a review would then be carried out. The employee was thanked for her work, told she was doing a good job, and was also encouraged to do extra training.

On Christmas Eve, some three months later, the employee informed that because of lack of additional funding the arrangement could no longer continue and her employment was terminated.

The Employment Relations Authority held that she was not a casual employee. From the outset the work was regular and rostered, with an expectation that she would be available 5 days per week. There was some flexibility over hours, but her start time was set and she was required to work at least two hours on the weekdays. The Authority held that she was, in reality, a fixed term employee. This took into account the consistent patterns in her daily attendance and days of duty, and the fixed term arrangement that was confirmed by the letter. Having found this, the Authority then considered whether the requirements of s66 (for engaging a fixed term employee) had been met. As they had not been met, her dismissal was unjustified. The employee was awarded $2,924.10 for lost wages and $4,000 in compensation.

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