Five years of regular scheduling patterns for work reveal true nature of relationship
The Employment Relations Authority (ERA) recently dealt with an employment dispute involving a worker who had been employed for over five years but found herself questioning the true nature of her working arrangement.
The worker argued that despite being classified as casual, her employment had evolved into something more permanent with regular hours and ongoing expectations.
The worker raised several key concerns about her treatment, including claims that her hours had been unilaterally reduced and that she had been dismissed in disputed circumstances.
She challenged the casual classification of her role, arguing that the reality of her working arrangement differed significantly from what was described in her employment contract.
Casual employment classification dispute
The worker started employment as a cleaner in August 2018 at various properties owned by a family-run accommodation business in Twizel.
The business operated three accommodation sites including a 25-unit motel, a lodge with four studio units, and a separate two-bedroom accommodation facility located two kilometres apart.
The worker had personal connections to the business owner's family, describing them as friends she had known throughout her life. She began working after returning to Twizel from Wanaka, where she had previously held a permanent part-time hospitality role.
Initially, no formal employment agreement was provided, and the worker says she was only given a written contract in September 2020 on what she described as a "take it or leave it" basis.
The employment agreement signed in September 2020 explicitly described the relationship as casual.
The first clause of the agreement described the employment relationship as "casual" on an "as and when required basis" with no minimum, fixed or "promised" hours and it stated there was "no expectation of ongoing employment."
However, the worker consistently worked between 20 to 25 hours per week across several days, following a regular pattern that typically included Monday to Thursday shifts with some weekend variations.
Text message evidence showed the business owner would regularly contact the worker asking if she could "work tomorrow," creating what appeared to be a routine pattern of work allocation.
Reduction of casual employment hours
The employment relationship began to deteriorate in mid-2023 when management changes affected the worker's hours allocation.
The business owner and his wife temporarily relocated to develop a new accommodation project in another town, leaving their daughter and her partner to manage both business sites.
During this transition, the worker had been allocated additional tasks including checking rooms after they had been cleaned and laundering linen, which added approximately one and a half to two hours to her daily work.
However, in early August 2023, the manager removed these room-checking responsibilities from the worker, reducing her weekly hours by what she described as "8+".
A text exchange from 11 August 2023 showed the manager was dissatisfied with the worker's room checks that day, explaining her reasons and stating she would take over this responsibility.
The worker became increasingly concerned about her job security, particularly after seeing an internet advertisement posted by the business on 10 September seeking a motel cleaner.
The ERA noted that the worker was "understandably entitled to perceive the ongoing employment relationship was in jeopardy."
Casual employment status determination
The ERA conducted an analysis of whether the employment was genuinely casual, examining both the initial arrangement and how it operated in practice over five years.
The Authority applied established legal tests to examine factors including the number of hours worked each week, whether work was allocated in advance by roster, whether there was a regular pattern of work, mutual expectations of continuity, notice requirements for absences, and consistent start and finish times.
The ERA acknowledged the informal nature of the original engagement and the employer's clear stated intention to maintain casual status.
However, the Authority found significant evidence contradicting the casual classification. The worker's pay slips showed a regular pattern of work, and she had expressed expectations of regular hours while seeking additional work when available.
Text messages revealed the worker would seek permission for days off in advance or provide reasons for unavailability at short notice, suggesting obligations more consistent with permanent employment.
Casual employment breaks down
The events leading to the employment breakdown started on 7 September 2023, when the worker arrived for her shift and met the manager's partner, who directed her to clean at another worksite.
The worker says she discussed her concerns about the removed room-checking tasks and their impact on her income, but the manager's partner recalled this conversation differently.
The accounts of the subsequent meeting between the worker and manager differed significantly. The worker initially said the manager came outside and angrily told her to go home as there was no more work, directing her to speak with the business owner about hour allocation.
However, during the investigation meeting, she said she interpreted this as being told to go home for that day only and hoped it was just a cooling-off period.
The manager said the meeting took place in the office, with the worker standing over her and being very agitated. The manager says the worker was demanding to be allocated six days a week work and five hours per day.
Following this confrontation, the manager contacted the business owner's wife, who then arranged for the business owner to call the worker on 10 September. This phone call became central to determining whether the worker had been dismissed, though the ERA found it impossible to conclusively determine what was said during this conversation.
ERA: Worker was 'unjustifiably disadvantaged'
Despite finding no unjustified dismissal had occurred, the ERA determined the worker was unjustifiably disadvantaged by the employer's actions.
The Authority concluded that as the relationship evolved over time and the worker proved reliable and available for more hours as her children grew up, the working arrangement operated differently to the casual label.
The Authority stated: "I find the relationship by its duration and nature, became permanent part-time and the attempt by [the employer] to reiterate their view it was a casual employment relationship by presenting an employment agreement with such a label, was an opportunistic attempt to impose what amounted to a flexible 'zero hours' agreement unconnected to the nature of [the worker's] pattern of work."
The ERA found the employer's approach unreasonable. The worker was awarded $8,000 compensation for hurt, humiliation and distress. Since the employment was found to be permanent part-time rather than casual, the worker also became entitled to proper holiday pay calculations.
