Worker loses wage claim over declined shift work

The Employment Relations Authority (ERA) found that a permanent-variable-hour residential worker was not entitled to wage arrears for a 12-month period when he declined available shift work due to personal health circumstances and caregiving responsibilities.

The worker claimed the youth justice facility owed him wages for offering work to casual employees instead of permanent variable-hour staff during the period from May 2020 to May 2021.

The Ministry disputed any entitlement to payment, arguing the worker had declined available work and the 'no work, no pay' principle applied.

The ERA determined the worker's employment agreement did not guarantee hours of work or require the employer to prioritise permanent-variable-hour employees over casual workers for available shifts.

The Authority found that the worker declined shift work offered due to his personal circumstances, which were not the employer's responsibility.

Employment status and agreement provisions

The residential worker commenced employment at the youth justice facility in April 2004 as a casual employee and changed to permanent-variable-hour status in 2009.

His offer letter explained that while he would be permanently employed, his actual hours would remain variable with no guarantee of the number of hours offered.

The worker's employment terms were governed by a collective agreement defining permanent-variable-hour employees as having permanent employment status while maintaining flexibility and variability of working hours.

The agreement specified that hours of work were not guaranteed and employees were not required to be available to accept work under section 67D of the Employment Relations Act.

The ERA found the only difference between the worker's employment as a permanent-variable-hour employee and a casual worker was permanent employment status.

The Authority determined that while this gave the worker security of permanent employment and work flexibility, there was no expectation or guarantee of minimum hours the employer needed to provide.

Health circumstances and work limitations

The worker suffered his first heart attack in 2016 and a second transient ischaemic attack or stroke in October 2020, leaving him with ongoing right-sided weakness. In conversations with facility management, the worker made clear that due to his health, he did not want to work on the floor with youth residents.

The worker was subsequently redeployed to coordinate and supervise visits to the facility, working Monday to Friday morning hours.

The ERA found this arrangement accommodated the worker's morning newspaper delivery run and evening caregiving responsibilities for his wife, who was not mobile and had her own health issues.

Management records from May 2020 showed the worker was reminded that available shift work consisted of night shifts due to recent permanent staff intake.

The facility's staffing levels were 22-24 permanent staff on the floor, with morning shifts well covered when escort duties were included. However, this meant that morning shift work that suited the worker was not available.

COVID-19 impact and work availability

The ERA found the COVID-19 pandemic affected the youth justice facility in the same way it impacted other detention facilities nationally.

Visits to the facility were suspended from May to July 2020 due to COVID-19, directly affecting the worker's gatehouse duties, coordinating and supervising visits since no visits occurred during lockdowns.

Limited visits resumed between August and December 2020 but were constrained by staff shortages and absences.

A high-profile escape incident in July 2020 triggered a major review of the facility during this period, with new management arriving to provide leadership and implement practice changes.

The ERA examined two payments made to the worker in September 2020 and June 2021, finding these were annual leave payments rather than evidence of hours worked or work availability.

Management correspondence explained one payment related to COVID-19 lockdown period adjustments for permanent-variable-hour staff, while another credited back annual leave that had been incorrectly deducted.

Work offers and personal circumstances

The ERA found evidence that the worker was offered shift work by management but declined it because he did not wish to work on the floor with youth residents following his second heart attack in 2020.

The Authority noted the worker's redeployment to supervising and coordinating visits was work directly impacted when visits to the facility were suspended due to COVID-19.

The worker's desire to care for his wife in the evening meant he could not undertake afternoon or evening shift work for the employer.

A June 2021 meeting with the worker and his representative addressed when the worker might be available to be placed back on the roster, but the worker indicated he felt he no longer wanted to work with youth residents and would not be available at that time.

Management records showed the worker had not performed any work for the employer since March 2020.

The ERA found that while the worker's fidelity to his wife's care was laudable, the employer could not be held responsible when it offered work, but the worker was not in a position to undertake that work for personal reasons.

Priority allocation and agreement interpretation

The worker argued the employer breached obligations by offering work to casual employees instead of permanent variable-hour staff.

The ERA found the collective agreement did not expressly state that if work was available, priority should be afforded to permanent-variable-hour employees over casual workers.

The Authority determined that while a practice at the facility may have arisen, giving the worker and his representative the impression of priority allocation, this was not a term or condition in the employment agreement.

The ERA found the agreement's provisions were clear that hours of work were not guaranteed for permanent-variable-hour employees.

Management later raised medical retirement with the worker in September 2021, noting it was no longer reasonable for him to be employed on a permanent-variable-hour basis if he did not intend to perform work in the future.

The worker's employment ended due to medical retirement in July 2022 after a voluntary medical retirement process commenced in May 2022.

ERA determination and cost allocation

The ERA concluded that the information and evidence indicated that available work between May 2020 and May 2021 was limited to floor work with youth residents and afternoon/evening shift work, neither of which the worker could do because of personal circumstances for which the employer was not responsible.

The Authority declined the worker's wage arrears application as unsuccessful.

For costs, the ERA noted the case fell within a category where parties presumptively bear their own costs: disputes about the application, interpretation or operation of a collective agreement.

The Authority's preliminary view was that costs should lie where they fall, though the employer was given the opportunity to make further submissions on costs within 21 days.

The total claim was dismissed with no wage arrears awarded to the worker for the 12-month period in question.

The ERA found the worker understood his permanent-variable-hour status meant he might not get work all the time, and the employer was not required to provide a minimum number of hours of work.