Many New Zealand industries, from horticulture to hospitality,
employ seasonal staff to work during peak times. Seasonal workers
may provide greater flexibility than permanent staff.
However, employers need to be mindful of their statutory
obligations when employing seasonal workers. If you don't
comply with "fixed term" statutory requirements, your
seasonal staff could claim that they are permanently employed and
challenge their dismissal.
So how do you make sure your staff are here for a good time, but
not a long time? You need to comply with fixed term requirements,
set out under the Employment Relations Act 2000. This includes
ensuring that you have genuine reasons, based on reasonable
grounds, for ending their employment on a fixed term basis. You
must include these reasons in the written employment agreement. You
also need to include the way in which the employment agreement will
end (including when and how it will end).
Seasonal employment has been recently considered in the
Employment Court. The case Turner v Talley's Group
Ltd, highlights the importance of making sure you have the
right employment agreements for seasonal staff and complying with
"fixed term" statutory requirements. In this case,
seasonal worker Mrs Turner successfully challenged her dismissal on
the basis that she was a permanent employee.
Mrs Turner was employed in a fish processing factory with
Talley's Group Ltd. She was employed on a number of individual
employment agreements over several years. Her most recent
employment agreements described her as a seasonal employee and
provided that, if the season extended beyond the projected
duration, she would become a casual employee.
Mrs Turner was not selected for the upcoming hoki fish season.
She applied for a position but was informed that she would not have
ongoing employment, and her employment ended. She raised a personal
grievance, claiming unjustified dismissal.
Talley's contended that it was justified in ending her
employment because she was a seasonal worker, and the
"season" for which she had been last employed had ended.
It argued that "seasonal" employment was different to
fixed term employment.
Talley's argument was quickly disposed of in the Employment
Court. The Court held that Mrs Turner's seasonal employment in
the fish processing industry fell within the statutory definition
of "fixed term" employment. Talley's should have
complied with the statutory requirements relating to fixed term
employment, set out under s 66 of the Employment Relations Act
The Court held that Talley's had failed to comply with these
fixed term requirements. First, Talley's did not have genuine
reasons, based on reasonable grounds, for specifying that her
employment was to end after the specified period or the conclusion
of a particular season. Secondly, Talley's had failed to
include the following provisions in Mrs Turner's individual
The way in which her employment would end (and advised her when
and how it would end); and
Talley's reasons for ending it that way.
As Talley's failed to meet these requirements, Mrs Turner
was considered a permanent employee. Her dismissal did not result
as an expiry of a fixed term agreement. The Court directed the
parties to mediation for settlement.
Employers need to comply with fixed term statutory requirements
when employing staff on a seasonal basis. Otherwise, personal
grievance claims for unjustified dismissal may be in this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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