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Fruit Seller Wrongly Sacked – Another Situation Where A Casual Employee is Deemed To Actually Be A Permanent Part Timer

Published 01 Mar 2012

Cullen Fruit and Veg did not prepare an employment agreement, to their cost, when they employed Susan Frost in 2011.

Ms Frost was employed as a retail assistant. The employer thought that she was a casual employee and she thought she was a part time permanent.

She worked on average for 20 hours per week, but did not have set hours.
The employer believed that Ms Frost was regularly selling the produce well below cost – and said that she sold $20 to $30 worth of produce for $0.79 cents. The employer did not tell her of their suspicions.

She had been employed by Cullen Fruit and Veg for 5 months when the employer told her that the shop was not doing well financially, they needed to cut costs and would contact her when they needed her in future.

She wasn't called again, but was overheard yelling to people that she had been dismissed and that they shouldn't buy from the shop. The owner heard of this and did not call her again because of his suspicions. He also noted that their profit had decreased by about 66% since Ms Frost started. Ms Cullen claimed that she had been dismissed and that it was unjustifiable.

The Employment Relations Authority said that she had regular work over an extended period and under law, classified her as a permanent part time employee. The ERA held that she was entitled to $3,324 in lost wages and $7,000 for humiliation, loss of dignity and injury to her feelings, but reduced both by 75% as her actions had contributed to her personal grievance.

What is Casual Employment?

Generally, these are employees whose employment is triggered by an event that cannot be accurately anticipated, with no expectation of ongoing employment beyond the event, or whose work pattern can be described as irregular or intermittent.

In a casual relationship, the employer is under no obligation to provide work. On being offered work the employee may, but is not obliged to, accept work and must notify the Employer of their decision within such time fixed for that purpose by the employer. Once work is accepted the employee is committed to work.

It is important not to confuse permanent part-time employees with casual employees. Many employees who are described as 'casual' are in fact part-time employees with a clear employment pattern. For example, supermarket or hospitality employees whose hours and days may vary, but they are always rostered to work.

When an employer determines the need for a role and decides whether it will be casual or permanent, it is important to prepare an employment agreement of the correct type, setting out the terms of the employment.

Employers are advised that Casual Agreements can be considered to disadvantage employees because no formal dismissal has to take place. They can be seen as an easy 'cop out' for employers and are therefore unfair on employees.

If a person has a casual employment agreement and then circumstances evolve, and they often do, then the employer may want to set up something more regular – it will probably be a new legal arrangement so we recommend that the employer presents a full/part time agreement before making a firm offer of set hours.

In some circumstances if a casual employment relationship was to extend past say 4 weeks, it may be viewed by the appropriate authorities as not being casual. If an employee has regular work over an extended period, it will not be viewed as a casual' relationship.

Be sure to use the correct Employment Agreement for the appropriate type of employment. See our latest Employment Agreements currently discounted to $86 + gst :4 Employment Agreements