Ben Devine v Health New Zealand - Te Whatu Ora [2025] NZERA 206

This determination is about two connected problems: a long-running dispute about whether a nurse was genuinely "casual", and a later stand-down/suspension without pay while the employer said it would investigate clinical practice concerns. The Authority found the real relationship was permanent part-time, the unpaid stand-down was an unjustified disadvantage, and reinstatement to a permanent position was required. The full determination is embedded at the end of this page.

Background: moving roles, locations, and the "casual" label

Mr Devine started in New Zealand nursing in July 2021 in a permanent 0.8 FTE role (64 hours per fortnight) at Buller ASU in Westport. In 2022 he picked up additional shifts at Te Nikau Grey Base Hospital and wanted to relocate to Greymouth for professional development. To make that shift work administratively, the employer issued two short letters in August 2022: one converted the Buller role from permanent to casual, and another confirmed a new permanent part-time role at Te Nikau (0.6 FTE) "with ability to flex up as required".

The Authority treated the arrangement as "messy" and emphasised two practical consequences Mr Devine would have been expected to understand: holiday pay was treated differently when casual, and there were no guaranteed hours when working casually. The Authority also noted neither letter advised Mr Devine of a right to seek advice.

The Te Nikau arrangement later ended. Mr Devine resigned in late 2023 and returned to Buller ASU working in a casual capacity from February 2024. A dispute then developed about whether he was genuinely casual, including a lawyer letter in October 2024 and an Authority application in May 2025 seeking a declaration on status and remedies.

Was the relationship genuinely casual?

The Authority applied s 6 of the Employment Relations Act 2000 (real nature of the relationship) and assessed "casual" status using the Employment Court guidance in Jinkinson v Oceania Gold. A key concept is whether there are mutual ongoing obligations outside each engagement (permanent work) versus obligations only during each engagement (true casual work).

The Authority also placed weight on the HNZ/NZNO collective agreement limits on using casual employees. The evidence indicated Buller ASU was short staffed and staffing "gaps" were being filled by casual work rather than engaging permanent (or at least permanent part-time) staff. The Authority said this was inconsistent with how casuals are meant to be deployed under the collective agreement.

The Authority concluded the real relationship had the characteristics of permanent part-time work and the employer's continued stance that Mr Devine was casual was unsustainable on a proper analysis of hours and context. It also found the continued utilisation of Mr Devine as a casual breached the collective agreement provision on legitimate casual use.

Clinical practice concerns and the stand-down of 14 August 2025

While the status dispute was unresolved, the employer received a letter from a clinical nurse specialist manager raising concerns about four clinical practice matters said to have occurred between 17 July and 7 August 2025. There were also allegations about communication around shifts and a general suggestion of issues with policies and procedures.

On 14 August 2025 the West Coast Director of Nursing wrote to Mr Devine advising he was to be stood down while an investigation was completed and an outcome determined. The letter focused on "perceived clinical concerns" but did not provide the underlying correspondence. It also only confirmed payment for the next four rostered shifts (as special leave).

A phone call on 14 August was said to have occurred and to have been recorded, but no recording was produced. Mr Devine said he was assured he would receive the recording but did not. The employer told the Authority it could not locate the recording and no notes were taken. The detailed letter of concerns was only provided on 20 August after Mr Devine's lawyer raised a personal grievance and sought particulars.

The Authority found there was then a prolonged period of poor communication. The employer did not promptly commence an investigation and was slow to address the effect of an enforced absence from work and loss of income opportunities.

Unjustified disadvantage: why the unpaid stand-down was found unjustified

The Authority treated the employer's action as a suspension/stand-down decision with serious consequences. It cited Employment Court authority emphasising suspension should be handled humanely and that fairness requires: the employee is told suspension is contemplated, the reasons why, and is given an opportunity to be heard before a decision is made.

The Authority criticised the 14 August letter because it did not explain any supposed distinction between stand-down and suspension, did not fairly address whether the employee should be suspended on pay, and was followed by a failure to actually investigate promptly. The combination of unilateral action, lack of process, and the duration of being left without pay and without an investigation was held to be an unjustified disadvantage.

Unjustified dismissal was not made out

Mr Devine also advanced an unjustified dismissal claim (including constructive dismissal), based on the way the employer handled the unpaid suspension and the breakdown in communications. The Authority found Mr Devine was not dismissed, constructively or otherwise. A key contextual point recorded in the determination is that Mr Devine's ongoing desire for reinstatement was inconsistent with the idea of a fundamental breach bringing the employment relationship to an end.

Remedies: reinstatement, compensation, and lost wages

Despite the dismissal claim failing, the Authority found the unjustified disadvantage and status findings justified significant remedies, including reinstatement. The Authority emphasised reinstatement is the primary remedy and can be ordered where practicable and reasonable. It found the employer had not established reinstatement would be impracticable and that not reinstating Mr Devine could have grave consequences for his public nursing career.

Practical takeaways

• "Casual" labels are not determinative: the real nature of hours and obligations, and collective agreement constraints, can convert an ostensible casual arrangement into permanent part-time status.
• Stand-down/suspension must be fair: a decision that removes work and pay is high impact and requires clear reasons, notice, and a real opportunity to respond, including whether the suspension should be on pay.
• Investigation delay can become the breach: standing someone down and then not promptly investigating (and not communicating) increases disadvantage and risk.
• Reinstatement can be ordered even without a dismissal finding: where a personal grievance is established (here, unjustified disadvantage) and reinstatement is practicable and reasonable.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.