In the dynamic landscape of employment, New Zealand, like many other countries, embraces various forms of work arrangements to accommodate both employers’ and employees’ needs. One such arrangement is casual employment, which plays a significant role in the country’s workforce. Understanding what constitutes a casual employee in New Zealand is crucial for both employers and employees to ensure fair treatment and adherence to legal rights.
Casual employment is not addressed in the Employment Relations Act and has only been addressed in case law, which makes it even more complex to understand and apply certain principles.
What is a casual employment agreement?
Casual employment in New Zealand is characterised by its flexible nature, where employees work irregular hours on an as-needed basis. Each time the employee accepts an offer of work it is considered a new period of employment. Unlike permanent employees, casual workers do not have guaranteed hours or ongoing employment security. They are typically employed to meet fluctuating business demands or short-term staffing needs.
If an employee is incorrectly labelled as a casual worker when in reality, they are a permanent employee, they forfeit certain entitlements such as sick leave and holiday pay. Moreover, a critical implication of this misclassification is that employers can terminate a casual employment relationship simply by not offering the employee any further shifts.
Many a times we have seen employees being dismissed on the basis that they are a casual worker, when, in reality they are a permanent employee. Regardless of what the employment agreement states, or what the employer asserts, simply labelling the relationship as casual does not make it so. The true nature of the employment relationship is determined by the actual working arrangements and the nature of the work performed.
What are the determinants of a working arrangement?
In determining the nature of the employment relationship, several factors need to be considered. These factors include, but are not limited to:
- Pattern of work: Casual employees typically work irregular hours based on the employer’s fluctuating needs or demands. They may not have set schedules or guaranteed hours each week. Permanent employees typically work regular, set hours each week. So if there is a roster for example, they are likely not going to be a casual employee.
- Flexibility of hours: Casual employees have the flexibility to accept or decline work hours based on their availability and the employer’s requirements. Permanent employees are typically obligated to work specific shifts and adhere to regular working hours.
- Intention of the parties: The intention of both the employer and the employee regarding the nature of the employment relationship is an essential factor. This includes the understanding at the time of engagement and the expectations regarding the duration and flexibility of the arrangement.
To avoid misclassification and ensure compliance with employment laws, it’s essential for employers to accurately assess the nature of the work arrangement and provide appropriate entitlements accordingly. Open communication between employers and employees regarding the terms of employment can help clarify any misunderstandings and prevent disputes over employment status.
It can be very difficult determining the difference between a permanent part-time employee and a casual employee, and you should always get advise if you have been dismissed even if you think you are casual employee.
There are lots of ways an employer might get it wrong. For example while an employer doesn’t have to offer a casual employee any shifts, if they fire someone during a shift it will most likely amount to an unjustified dismissal.
In conclusion, understanding the distinction between casual and permanent employment is vital in New Zealand’s employment landscape. Misclassification can result in significant repercussions for both employers and employees, highlighting the importance of clear communication and adherence to legal obligations in the workplace.
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