Maiden v Timbertank Enterprises Ltd

Maiden v Timbertank hit the headlines recently when Timbertank was found to have unjustifiably dismissed Maiden after 17 years employment, claiming he was a casual worker. The media stories focussed on the employer’s actions but there is a deeper issue regarding the definition of casual workers that trips up many employers.

Having worked at Timbertank for so long, Maiden had become a spokesman for the staff and was representing them in negotiations for a pay rise. The relationship with his employer became a bit strained and one day he received a text saying the company no longer wants to use you…sorry and good luck. The employer genuinely believed that Maiden was a casual employee and therefore they had the right to elect not to use him.

Because Maiden was only working on an “as required” basis, and had no minimum hours, pattern or days of work, the employer believed he had no right to take a personal grievance. It was an expensive misunderstanding. The Authority stated that Maiden is…a permanent ongoing employee who has no fixed or set hours of work. He has the same rights as other permanent ongoing employees with the exception being that his hours of work are variable because they are based on Timbertank’s labour needs and not on a minimum number of agreed contractual days or hours of work.

The Employment Relations Act does not define casual workers and the lines between permanent workers with no fixed hours, fixed term workers and casual workers becomes very blurry at times and many employers share Timbertank’s misunderstanding. Unfortunately, the Authority did not provide a definition of casual worker and test Maiden’s situation against it, which gives other employers guidance in similar situations.

Genuinely casual work has no pattern to it and no expectation of being repeated, for example, hiring someone to unload a container of goods. If you get a container in every couple of weeks and train the person to enter the stock into your system and arrange for the them to come back again to help, that is more likely to be permanent employment. If you have a relief receptionist who works on average a day a week, it is more likely to be an ongoing employment relationship than a casual one. Predictable patterns of work and expectations that the employee will be offered and will accept the work, are strong indicators of an ongoing employment relationship, albeit with no fixed hours or days of work.

If there is any doubt about the employment status, assume the person has an ongoing employment relationship and give the employee the same consideration as you would an ongoing worker. The other essential is that every worker must have a written employment agreement, including casual workers (this can be a one page form with the details hand written on it).

Similarly, with seasonal workers there is now an expectation that the employment is continuous from one season to another even though there is no work during the off season. This is a significant change in perspective from the concept of the workers being employed for the fixed duration of the season and terminated at the end of the season. Thus, it is no longer practical to endure a poor performer for the season and let them go at the end, the employer has to address the performance issue as they would with any other worker.

Coming back to Maiden and Timbertank, the rest of the text terminating the relationship indicated that Maiden’s performance was no longer satisfactory …rough and ready, tank cleans not being done and return trips for leaking liners meaning a different approach was required…

Even if Maiden had been employed on a casual arrangement, if the employer had issues with his performance, they were obliged to discuss it with him and give him an opportunity to correct the situation. So, casual or not, the dismissal would have been unjustified.

Timbertank was ordered to pay Maiden 6 months’ pay, plus $9,000 hurt and humiliation, wage arrears, holiday pay, unpaid public holidays and legal fees which must have been somewhere between $30,000 and $50,000 in total.

It would have been much cheaper to get some professional advice.

 

Anne Aitken, HR Professional, anne@anneaitken.co.nz