Posted on: May 17, 2013
An employer who employs seasonal workers must provide those workers with a fixed term agreement that complies in every respect with the Employment Relations Act 2000, section 66. An employer who has engaged a seasonal employee but has failed to provide for a fixed term and then dismisses the employee at the end of the season without going through a fair and reasonable process will be found liable for unjustifiably dismissing the employee.
In Turner v Talley’s Group Ltd [2013] NZEmpC 31, the employee was employed by Talley’s Group Ltd (the employer) in a fish processing factory. Different fish were processed in different seasons. The employee started work as a so-called “casual” in 2001 but worked regular 40-hour weeks from that time, except for several months in 2009. Over the course of a year, the employee would be engaged sequentially in processing various types of fish. With each change of fish product, the employee was given a new employment agreement to sign. The agreements described her as a seasonal employee and provided that if the season out ran the projected time the employee’s status would change to “casual” until work on that fish product was finished. In the year before her dismissal (2010), the employee signed three agreements and worked full time on a 40-hour per week basis.
In 2011, the employer did not select the employee to work during the hoki fish season. The employee raised her concerns and applied for a position but was told she would not have ongoing employment. The employee’s employment under her Half Shell Mussel Individual Employment Agreement which she had entered into on 1 November 2010 ended 15 July 2011. The employee raised a personal grievance for unjustifiable dismissal.
The Employment Court said the so-called “seasonal” employment fell within the statutory definition of fixed term employment and noted that the Act assumes employment agreements will be of indefinite duration unless they are specifically for a fixed term and meet the statutory requirements for fixed term agreements set out in section 66 of the Act. The Court found the employer failed to meet the requirements of section 66 because:
- it was doubtful that the employer had genuine and reasonable grounds for requiring the employee to be employed on a series of fixed term agreements
- the agreement did not advise the employee of when and how her employment would end, and
- the agreement did not state the way in which the employee’s employment would end and the reasons for it ending in that way.
The Court said that, as a result of that non-compliance, by law the employee was presumed to be employed under a contract of indefinite duration. The Court said the employee’s employment ended because she was dismissed and not as a result of the expiry of a fixed term agreement. Having given that ruling the Court directed the parties to mediation in the hope the parties could settle the issues between them.
As well as giving guidance for employers about the employment of seasonal employees, the case provides two other warnings for employers:
- Take care when responding to personal grievances raised by the employee. Step one for the employer should be to check that the grievance has been raised within the statutory 90-day period. In this case, the employee actually raised the grievance out of time but, because the employer responded to it in detail and did not claim the grievance was raised out of time, the Court held the employer had impliedly consented to the employee raising the grievance out of time.
- An employer who has performance concerns about an employee and who decides to end the employee’s employment rather than deal with the performance concerns (as this employer did) will be in breach of its duty of good faith and will have disadvantaged the employee in employment.
Disclaimer
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