A recent case involving a part-time bar manager who was sacked from her job highlights the need for clarity around casual and part-time workers, and the importance of employment agreements.
Nicolette Gladding was the manager at Glenorchy Lodge when Graham Dunstan, her boss, got upset that she wanted to cook chips for people at the bar on September 7, 2013.
According to Stuff.co.nz, Dunstan had been drinking at the bar when he began shouting at Gladding that he did not want to feed people who had been drinking at other bars that day. Although Gladding says she conceded, she claims Dunstan then allowed a patron back into the bar who she had previously asked to leave for making inappropriate comments. Gladding then erased her name from the duty manager notice board and replaced it with Dunstan’s.
A week later, Gladding’s shifts were cancelled (after she failed to show up on a Wednesday, as she argues that wasn’t her usual shift and one she had only been working in previous weeks because of a new weekly quiz night) and Dunstan told her that, as a casual worker, she’d be called in as needed.
After numerous attempts, Gladding’s regular shifts weren’t reinstated.
According to Gladding, when asked for a justification, Dunstan said it was all because of the hot chips.
Because it was found that Gladding was a part-time employee working consistent shifts, the
Employment Relations Authority (ERA) deemed her dismissal unjustified. She has recouped $8,317 in lost wages and compensation.
According to Jennifer Mills, Partner at Minter Ellison Rudd Watts Lawyers, the case holds useful lessons for employers of part-time and casual staff.
“The ERA noted that a ‘casual’ arrangement implies irregularity in terms of both hours available and time at which they might be worked,” says Mills. “Therefore, it was held that even if Ms Gladding had originally been engaged on a casual basis, the nature of her employment had changed (which, as the ERA noted, can legally occur) and she was no longer a casual employee but a part-time one.”
The ERA established that Gladding was a part-time worker, rather than a casual employee, as she mostly worked Thursdays, Fridays and Saturdays from 6pm until closing.
The ERA also found that the lodge had never provided an employment agreement for Gladding to sign. However, reducing someone’s hours and thereby affecting their earnings is a breach that can justify resignation and, therefore, it was decided that Gladding was “constructively dismissed”.
“By arbitrarily removing Ms Gladding’s regular hours and advising that she could no longer expect those hours, the Lodge had sent Ms Gladding away. As such, this was, effectively, an actual dismissal,” explains Mills.
“The decision highlights the need for employers to properly understand the nature of their employees’ employment arrangements and to have in place the necessary documentation. The case might also be seen as a cautionary tale in respect of the rights of part-time employees,” concludes the lawyer.
