Employment Update – Week 3, June

Updated: Jun 24, 2019


Special rule for bus operators dealing with new rest and meal breaks

On 6 May 2019, an amendment to the Employment Relations Act 2000 came into effect which reintroduces a requirement for employers to provide breaks of prescribed timing and duration.

The requirement for rigid adherence to precise duration and timing of breaks is more challenging for some industries than others. The government has recognised that the bus transport industry is one requiring more time to adjust. Accordingly, the government announced that it has introduced a new land transport rule that aims to help avert bus services being cancelled and give bus drivers the rest breaks they need to keep passengers safe.

The government advised that the new rule was in response to concerns raised by councils, bus operators and unions that the new rest and meal break entitlements would cause the cancellation of numerous daily bus services.

The Minister for Transport, Phil Twyford, said the new rule gives flexibility to bus operators when scheduling rest breaks for bus drivers.

Workplace Relations and Safety Minister Iain Lees-Galloway said that in addition to the new land transport rule, councils, union heads and bus operators had agreed on a memorandum of understanding.

The rule came into effect on the same date as the new rest and meal breaks legislation: 6 May 2019. It is intended to be a transitional rule while bus operators adjust to the new rest and meal breaks requirements and expires 12 months after its commencement.

The rule aims to space the 10-minute rest breaks efficiently and safely rather than necessitating that they must rigidly take place in the middle of the work period. It also aims to prevent the disruptive effects on mobility or potential safety risks by avoiding the need for drivers to stop in inappropriate locations in order to take breaks.

The press release from the Minister for Workplace Relations and Safety, Iain Lees-Galloway, and the Minister for Transport, Phil Twyford, can be seen at www.beehive.govt.nz. “Land Transport Rule: Work Time in Large Passenger Service Vehicles 2019” can be obtained from www.nzta.govt.nz.

Question and Answer

Dismissing a casual employee

Background: We have an employee on a casual employment agreement with us. Very serious concerns have arisen which we think amount to serious misconduct, and we are thinking of dismissing the employee and are very concerned with him being in the workplace now. Normally we would follow a disciplinary investigation process, but this is only a casual employee.

Question: Do we still need to follow a process?

Answer: Yes. If the employee is currently engaged for a period of employment, then regardless of whether the employment is casual or not there is still a requirement to follow a full and fair process as well as to be able to substantively justify the dismissal.

The first thing that you will need to consider is whether or not the employee is actually a casual employee in substance. Even if you have a written employment agreement signed by both parties which defines the employment as casual, it can still be deemed permanent by the Employment Relations Authority or Court if the employment is considered to be more akin to permanent employment in practice. If that were to happen, it would obviously follow that any dismissal without process or of substantive justification would be found to be unjustified. The assessment of whether the real nature of the employment is casual or permanent involves many different factors and is a separate question in and of itself. For the purposes of simplicity, let’s assume that the employment you are referring to is unquestionably casual both in the signed employment agreement and in practice.

The case law clarifies that even where an employment relationship is truly casual, there is still a requirement to follow a full and fair process before dismissing an employee as well as to have substantive justification for the dismissal. In a 2011 decision of the Employment Court, although the Court found that the real nature of the purportedly “casual” employment relationship was one of permanent employment, the Court considered that, if it were incorrect about the employment relationship being permanent, the employee had nevertheless been dismissed from casual employment: Rush Security Services Ltd t/a Darien Rush Security v Samoa [2011] NZEmpC 76. The employee had agreed to work four 12-hour shifts beginning on 20 July but had been told after the first shift there was no more work for him. He had, accordingly, been dismissed; it was not a failure or refusal by the employer to enter into a further casual engagement. The loss of the security contracts had effectively created a redundancy, but the employer had not observed the statutory obligations of fairness and good faith necessary when terminating employment on this or any other ground.

More recently, the Employment Relations Authority applied the Rush Security decision in finding an employer’s dismissal of a casual employee during a period of employment to amount to an unjustified dismissal: Armstrongv Surplus Brokers Ltd [2019] NZERA 235. Following expressing dissatisfaction with certain events associated with the employee, the employer dismissed the employee. This dismissal took place through the employer requesting the employee to return his work shirts, which the Authority considered in the circumstances amounted to a dismissal as a “sending away” of the employee. This was followed by an email from the employer to the employee saying the employer would “not be continuing our job role offers with you”. The Authority was satisfied that the real nature of the employment relationship was one of casual employment. However, the Authority observed that dismissal may occur during a period of casual employment. An engagement had been agreed to work each day for the period from Thursday 5 April to Monday 9 April. The employee was dismissed on 9 April during the period of the engagement when the employee was also expected and had agreed to be available to work that day. The Authority held that the dismissal occurred during a period when the mutual obligations of employment existed between the parties. The employer did not follow a fair investigation process into the concerns held by the employer which resulted in the employee’s dismissal. The dismissal was therefore found to be unjustified. The employer was ordered to pay $9,000 in compensation.

A key issue will be whether or not the employee is currently employed at the time of the dismissal. With true casual employment, each period of employment is a separate engagement. So, while there is no obligation to offer true casual employees employment in the future (after the end of each engagement), the casual employee is still an employee for each engagement. While typically such engagements for casual employees are short, employment obligations apply to both parties during that period of employment. Therefore, for example, if you agreed that a true casual employee would work for a two-week period, you cannot dismiss that employee during that two-week period without following an appropriate process and having a substantively justifiable reason for doing so. Otherwise, you could be liable for an unjustified dismissal grievance.

Reproduced by permission of Wolters Kluwer NZ

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