| Summary |
UNJUSTIFIED DISMISSAL – Whether applicant permanent part-time or casual employee – Applicant commenced employment as casual employee – Applicant claimed over time became permanent part time employee – Due to staffing changes applicant no longer included on roster – Applicant claimed no consultation, no notification of staffing surplus, and no application of options available under employment agreement – Claimed respondent’s action unfair and unjustified - Applicant sought reinstatement, reimbursement of lost wages, lost remuneration and holiday pay, and compensation - Applicant claimed written terms of employment indicative of on-going employment relationship – Claimed letter of appointment provided for on-going terms, such as performance planning and sick leave – Claimed job description provided for continuous quality improvement, regular performance appraisal meetings, participation in regular team meetings, on-going education and maintenance of monthly statistics – Claimed true nature of relationship strongly indicative of on-going employment - Applicant claimed had regularity of work and continuity of employment in absence of any set hours or days of work - Respondent claimed intention of parties that applicant be causal employee - Respondent denied applicant had any discernable pattern of work - Respondent claimed no obligation on applicant to accept offered shifts – Claimed applicant was asked what shifts wanted to work whereas permanent staff worked where rostered – Claimed applicant dictated where would work whereas permanent employees required to work in different areas according to their scope of practice and skill mix – Claimed applicant could withdraw acceptance to work in 24 hours without reason and without needing approval and employer could do same whereas permanent employees had to seek approval and complete a form - Respondent claimed if applicant found to be permanent part time employee then denied applicant’s claims and claimed reinstatement impractical - Authority found no doubt parties’ original intention was for casual employment relationship - Found applicant’s employment agreement never varied or changed – Found applicant able to determine where, when, how often, and for how long worked – Found applicant did not have regular shift pattern – Found applicant not subject to same requirements as permanent employees - Authority not satisfied any arrangements that existed to support applicant’s role were inconsistent with casual employment - Authority found present case could be distinguished from principles laid down in Jinkinson v Oceana Gold (NZ) Ltd - Found applicant casual employee and role remained as casual employee - Authority accepted respondent had genuine reasons not to offer applicant further work – Authority satisfied applicant aware were changes pending - Found respondent not deliberately withholding information – However, found no consultation process followed – Found applicant not provided with access to information relevant to continuation of employment as a casual – Found not given opportunity to comment before decision made – Dismissal justified - Remedies – No contributory conduct - Found reinstatement impractical because of staffing requirements and nature of position applicant held - Applicant’s claim for lost remuneration and holiday pay dismissed because of nature of employment - $3,000 compensation appropriate - Enrolled nurse |