Two recent Employment Court cases1 have clarified the law on casual employees. Generally, a casual employee is one who has no expectation of on-going employment and their employment terminates at the end of each engagement.

These recent decisions have held the following:

» The strongest indicator of whether someone is not a casual employee, that is, a permanent employee, is by assessing whether you need to offer your employee available work and whether your employee is required to do that work.

»While employment can start out as casual, it can change to permanent employment over time.

» Despite the parties having signed a ‘casual employment agreement’, the court can consider the ‘real nature of the relationship’.

» If the employment agreement has any obligations which apply after each engagement, for example if your employee needs to give notice to take leave or to resign, or is restrained from working from other employers, then this will indicate there is a permanent employment relationship.

These developments are of importance if you hire casual employees. If you incorrectly hire employees as casual employees, you could be liable – following a personal grievance claim by your employee – to pay them compensation and/or additional holiday pay.

1 Jinkinson v Oceana Gold (NZ) Ltd (2009) 9 NZELC 93,341; [2009] ERNZ 225; (2009) 6 NZELR 813 (EMC); Rush Security Services Ltd t/a Darien Rush Security v Samoa [2011] NZEmpC 76