Casual employees in New Zealand have the same employment rights as other employees, with a few notable exceptions. This means that casual employees can raise a personal grievance just like other employees, including for unjustified dismissal. However, because casual employees may have unpredictable and variable work, in most cases 'dismissing' a casual employee is much less complicated than the usual process for dismissing an employee. This article will:
- summarise casual employment and the employment rights that casual employees have;
- look in depth at dismissing casual employees; and
- consider how you and your business can avoid claims of unjustified dismissal from casual employees.
What Are Casual Employees' Employment Rights?
Technically, 'casual employee' is not a fixed legal term in New Zealand employment law. The term refers to a situation where an employee has no guaranteed hours of work or ongoing expectation of employment. As the employer, you do not have to offer work to a casual employee, and the employee does not have to accept work if you do offer it to them. Casual employees can work flexibly, whenever it suits both them and you as their employer.
Usually, employees are on casual employment arrangements when:
- it is hard for the business to predict when they need the work; or
- when the work needs to be done quickly.
Every time a casual employee accepts an offer of work, it is a new period of employment. If you employ someone to do casual work, this must be made clear in their employment agreement. We will discuss this more later on this piece.
Employment rights and responsibilities still apply to casual employees. However, the way annual holidays and sick leave are applied can vary for these employees. As casual employees do not have set hours, it is often not practical for them to take annual holidays. The employee and employer can instead agree that an extra 8% will be paid on top of their wages or salary instead of taking annual holidays. This is usually called 'holiday pay'.
Dismissing a Casual Employee
It is certainly possible for a casual employee to claim that they have been unjustifiably dismissed. For that reason, even though an employee might be casual, you cannot unilaterally 'fire' them. You also cannot take back work that has been agreed between you and the employee. If the employee has committed some kind of misconduct or serious error that causes you to doubt their work or not want to work with them, you must conduct a fair process just like with other employees.
However, each time a casual employee accepts an offer to work, this is considered a new period of employment. Therefore, if an employer decides to stop offering work, it does not count as a dismissal because the employer has no responsibility to provide work. If you have an issue with a casual employee, you can simply stop offering them any more work. However, there is an important distinction between not offering an employee more work, and stopping them from doing work that has been agreed. If you send an employee home in the middle of a shift or goes back on an agreement to provide work for a shift, this could mean that they were dismissed.
How To Avoid Claims of Unjustified Dismissal From Casual Employees
The key way to avoid claims of unjustified dismissal from casual employees is ensuring that all communications and agreements with the employee in question are clear and understood on both sides. Remember that, like other employees, any kind of disciplinary action must require a fair process.
Another key way to maintain good processes is to ensure that you have well-drafted casual employment agreements, which outlines the details of an employee's work hours. These agreements should make clear that:
- there is no guarantee of work on a specific day;
- the amount of work will fluctuate;
- each time the employee accepts an offer of work it is considered a new period of employment; and
- the employee does not have to make themselves available for work.