A supposedly seasonal worker employed in a Talley’s fish-processing plant was deemed to be a permanent employee by the Employment Court. Where did her employer go wrong?
A supposedly seasonal worker employed in Talley’s fish-processing plant in Motueka was deemed to be a permanent employee by the Employment Court, not a ‘fixed-term’ employee, thus allowing her to lodge a personal grievance. The case has a number of ramifications for other employers.
The plaintiff began working at the fish processing plant in 2001 as a casual worker and, apart from a break of a few months in 2009, worked 40-hour weeks until 2011. Her seasonal contracts were to process various types of seafood, depending on demand.
In 2011 she was not selected for another contract and was given no reason for her exclusion. The worker initiated the case in June 2011, but lost at the Employment Relations Authority before progressing to the Employment Court. The Employment Court judge, G L Colgan, observed that the employer had an ulterior motive: the plaintiff’s performance.
“The easiest way to deal with the situation was simply not to renew her employment after it ceased …While that may have been an effective strategy if [the plaintiff] was engaged under a lawful fixed-term or ‘seasonal’ agreement, it was a flawed one if she was an employee of an indefinite duration as I have now concluded she was,” Judge Colgan said.
Max Whitehead told Radio New Zealand that it would have wide-ranging ramifications. “Employers are going to have to be more cautious in terms of how they draft up their employment contracts and I would think it probably would open the doors to some casual employees, and certainly the seasonal employees, to challenge their employer in regards to the legalities and the application of their employment contracts,” Whitehead said.
Whitehead noted that, under section 66 of the Employment Relations Act 2000, a ‘fixed-term’ contract must define how the employment will end and there must be a genuine reason for the contract to be finite.
The Employment Court has called for prompt mediation. Talley’s stated that they will review the decision, but that they will continue with their current employment practices.
Key HR Takeaways:
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- In order for a ‘fixed-term’ contract to be legitimate it must meet those conditions stipulated in section 66 of the Employment Relations Act 2000.
- The first basically requires that the contract define when the employment will end, i.e. at the close of specified period, event, or project.
- The second requirement is that there be a genuine reason for the contract to be of a ‘fixed-term.’