How do you terminate a Casual Employee?
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A genuine casual employee has no set or agreed days or hours of work with any work being offered on an ‘offer and acceptance’ basis. The employee cannot raise complaint for not being offered work, and the employer cannot penalize the casual employee for not accepting an offer of work.
In most cases, the casual employee can generally be terminated by the employer by simply stopping to offer work. However, casual does not mean that the employee does not have rights and therefore the ability to raise a personal grievance still remains.
Frequently Asked Questions.
Do casual employment agreements have to have a notice period stated?
The Employment Relations Act 2000 confirms that every employer must provide a written employment agreement to every employee. As such, the same minimum provisions required within a permanent employment agreement apply to agreements for casual workers.
Generally, the notice period to be stated for a casual employee will be one (1) week by either party. However, the employer can legally terminate the agreement by not providing any further offers of employment, the notice period is more relevant to the employer who no longer wishes to be available to accept offers of employment.
When can a casual employee’s termination be deemed unlawful?
Although many employees may be on casual employment agreements, in reality they may be in fact permanent employees. This can occur when the casual employee establishes a pattern of regular work over a period as short as 3 – 4 weeks.
Where the employee has regular or predictable hours of work, or there is a mutual expectation that the employee will be available for ongoing work, failing to provide such work may be deemed an unjustified dismissal.
If the employee has established a regular pattern or expectation of ongoing work, anything short of a genuine consultation period where it is proposed to end the employment, and where the employee has had a genuine opportunity to provide feedback on the proposed termination, may be deemed to be an unjustified action.
Can we terminate a casual employee after offering them work?
Where a casual employee has been offered a period of work, and then accepts that offer, if the employer wishes to terminate the casual employee before that period of work is completed, the employee will be entitled to payment for all work that would have been completed during the agreed period, even for the period not now required to be worked.
However, if the decision to terminate relates to actions of the employee (that would generally constitute misconduct or serious misconduct) and the employer terminates the employee before the period of agreed work concludes, without conducting a procedurally fair disciplinary process, this could be deemed an unjustified dismissal.
What payment entitlements do casual employees have on termination?
Genuine casual employees are paid 8% “pay as you go” annual leave entitlements and as such, the only remaining payment (if any) will be for any work completed in the current pay period. However, if the employee is not deemed to be a genuine casual employee, The Holidays Act 2003 confirms that the employee will be entitled to four (4) weeks annual leave, regardless of what they have been paid in advance (the 8% payments)
How can Russell Drake Consulting assist us in the termination of a casual employee?
Russell Drake Consulting can assist you in determining whether the employee is a genuine casual or not, and whether any risks or liabilities exist in seeking to terminate the employee’s employment. If the employee is not deemed to be genuine casual, Russell Drake Consulting can assist you in implementing the correct processes to bring the employment to a conclusion without risk of a justified personal grievance claim.