Employee disputes casual employment arrangement claiming permanent terms were agreed
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a qualified roofer who disputed the nature of his employment arrangement and claimed unjustified disadvantage when he was suspended and later dismissed from his position.
The worker argued that he had been offered permanent employment with guaranteed hours, company vehicle and fuel card, but was treated as a casual employee without proper consultation when work was withheld.
He also claimed his employer breached employment law by failing to provide a written employment agreement despite repeated requests.
The case centred on whether the employment relationship was casual or permanent, with both parties having completely different recollections of their initial verbal agreement.
Employment status disputes under workplace law
The worker was a qualified roofer who left his previous employment on 21 December 2023 due to an altercation with another employee.
The following day, the director of a roofing company phoned the worker, aware of the altercation, and offered him work starting on 15 January 2024.
The parties had completely different recollections of this crucial phone conversation. The worker said he accepted work based on the call and was verbally offered work "on the same terms as his previous role."
His previous role was permanent, 35-40 hours per week, 7:30am to 3:30/4:30pm with a company vehicle and fuel card, and he believed these would be his terms with the new employer.
The company disputed this version, saying no specifics were discussed in the phone call. The director claimed the worker was offered work on a casual basis, was not guaranteed any minimum number of hours, and the company would try to "fit him in" with its work.
No employment contract was ever provided despite the worker starting work on the agreed date.
Casual employment arrangements and work patterns
Between 15 January and 28 February 2024, the worker worked 169.50 hours as a roofer for the company.
His work pattern showed significant variation, with days ranging between four and five per week and hours varying between 19.50 and 31.5 hours per week over the seven weeks he was working.
The worker was sent home on his first day of employment as there was no work available. He was contacted later that day and told there would be no work the following day either because it was expected to rain.
Throughout his employment period, there were multiple occasions where he was told to stay at home for various reasons.
After an arm injury on 27 February 2024, the worker took time to recover and was contacted by the company on 28 February 2024 to come back when his arm was better.
Text messages from the worker during this period showed uncertainty about work availability, with queries such as "anything else you want me to do or head home?" and "is there any work for tomorrow?"
Workplace conflict and employment termination
On 4 March 2024, the worker was told by phone that there was no work for two weeks because he and a former colleague from his previous employer could not be working together, and there was no other job to place him at that time.
The worker claimed this amounted to suspension without consultation and that he was not provided with an opportunity to comment on whether he could work safely with the other employee.
The company offered the worker office work on 6 March 2024 while he recovered from his injury, but he did not accept this work as he was unsure whether he had ongoing employment.
Matters escalated by phone and text message on the evening of 6 March 2024, with heated exchanges between the parties.
On 7 March 2024, following the heated exchange of text messages the previous evening, it was confirmed in a phone call with the director that "it had not worked out and that there was no position for [the worker]" at the company.
He was asked by text to return the work vehicle and did so, effectively ending the employment relationship.
ERA analysis of employment relationship
The ERA applied established legal tests to determine whether the employment was casual or permanent.
The Authority considered 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, and whether there was mutual expectation of continuity of employment.
The ERA found that both parties gave evidence that there was no regular pattern of work, with the worker's pay report confirming this.
There was no mutual expectation of specific hours, with the worker expecting to work Monday to Friday 7:30am until 4:00pm as he had done with his previous employer, while the company intended that if there was no work, he would not get paid.
The Authority found the director's account of the initial phone conversation more credible, noting that he "had not thought things through in much detail before making the call" and wanted to help the worker after learning about his circumstances.
The director said he called because he "wanted to help him, was not sure how but thought he ought to do something" and wanted to "fit him in as [he] could."
Employment agreement breach and penalties
The worker repeatedly tried to get an employment contract from the company and provided evidence of at least three attempts.
Text messages and an email between 19 January and 1 February 2024 showed the director mentioning that he was writing up a contract and "putting the 90-day trial clause in" but nothing eventuated.
The director admitted that he did not provide an employment agreement, making the company liable for a penalty for breach of Section 65 of the Employment Relations Act.
The ERA noted that the company's "relaxed approach to the employment documentation has consequences" and that by failing to provide written documentation, the company's inaction led to the worker misunderstanding the nature of his employment.
The ERA found that the company had "good intentions offering [the worker] work and did not intend to mislead him" but noted that the company "failed to communicate effectively with [the worker] about his employment and had an obligation to do so."
However, the Authority found no evidence that the failure was deliberate, serious, and sustained enough to warrant a penalty for breach of good faith.
Final determination and penalty award
The ERA concluded that the company intended the employment to be casual and the evidence supported this as more likely than not.
As a casual employee, there was no obligation on the company to provide work or pay wages when no work was offered, meaning there was no unjustified suspension or dismissal.
The Authority found that the worker's "text message content on 6 and 7 March 2024 effectively ended any chance of an employment relationship" and that as a casual employee, he chose not to take up the work offered on 6 March 2024, which was his right.
However, the ERA awarded a penalty of $1,000 to be paid to the worker for the company's breach of Section 65 of the Employment Relations Act in failing to provide a written employment agreement.
The Authority noted that "a written agreement between the employer and employee provides clarity and agreement on the fundamental terms and conditions of employment from the start" and that this was "an important and fundamental aspect of the Act."
