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 2000.
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 employment:
- 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 season.
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.