Fiona Scott v Ritchies Transport Holdings Limited [2026] NZERA 342

This Employment Relations Authority (ERA) determination concerns Fiona Scott, who signed a casual employment agreement with Ritchies Transport Holdings Limited but worked regular and substantial bus driving hours over about 15 months. After a route deviation to take a toilet break at home, Ritchies issued a first written warning. Around the same time, scheduled shifts were removed and Ms Scott was then not offered any further shifts. The ERA found that, by the time shifts stopped, the real nature of the relationship had become permanent employment. The failure to continue offering work was an unjustified dismissal. Ritchies was ordered to pay $10,000 compensation and $12,870 gross lost wages. The full determination is embedded at the end of this page.

The short point

This case is a useful example of a casual label failing because the working relationship became regular, predictable and ongoing. Ms Scott signed an agreement saying she was casual. But the ERA looked at the real nature of the relationship by the time Ritchies stopped giving her work.

The decisive facts were not the words used in the contract. The decisive facts were the volume and regularity of the work, the rosters issued in advance, the expectation that Ms Scott would work the shifts she was allocated unless she contacted Ritchies, and the fact that most of her work was repeated urban driving rather than genuinely ad hoc charter work.

Once the Authority found Ms Scott was a permanent employee, the decision to simply stop offering shifts was not a neutral exercise of casual-employer discretion. It was a dismissal. Because there was no proper substantive reason and no proper process, the dismissal was unjustified.

Background

Ms Scott signed a casual employment agreement on 13 December 2022 to work for Ritchies as a Charter Driver. Although the agreement recorded her as a charter driver, the evidence showed that she regularly drove urban routes. The Authority recorded that about 90 percent of her shifts were urban work.

Ritchies allocated work through a driver app and also displayed physical rosters at the depot. Ms Scott could see upcoming shifts in the app and, for longer forward visibility, on depot roster sheets. The important factual issue was whether the app was an accept-or-decline tool, or whether it was mainly a way of showing allocated shifts.

The ERA accepted Ms Scott's evidence that she did not accept or decline shifts through the app. Instead, Ritchies allocated shifts and the operating assumption was that she would work them unless she contacted operations to say she was unavailable. That was an important point because it supported a finding of mutual employment obligations once rosters were issued.

The hours were substantial and regular

Over approximately 15 months, Ms Scott worked in all but one fortnightly pay period. Her hours varied, but the pattern was still extensive. In some fortnights she worked fewer than 10 hours, while in others she worked more than 120 hours. She rarely, if ever, said no to work.

The Authority recorded that in about 80 percent of fortnightly periods Ms Scott worked at least 40 hours, and in slightly under half she worked at least 80 hours. Between August and December 2023 there were ten consecutive fortnights where she worked no fewer than 85 hours. Over the final 38 weeks of her employment, even allowing for a later reduction in hours, her average fortnightly hours exceeded 80.

The ERA found that the regularity and consistency of her hours, together with predictable urban route work, created a legitimate and ongoing expectation of employment. That expectation created a corresponding obligation on Ritchies to provide ongoing work. Those features pointed strongly towards permanent employment.

The permanent employment offer did not defeat the claim

In December 2023, Ritchies offered Ms Scott a permanent employment agreement. She turned it down. Ritchies argued it was inconsistent for her to decline permanent employment and later claim she was a permanent employee.

The ERA did not accept that argument. The legal question was not what Ms Scott subjectively thought about her status or what label she preferred. The question was the real nature of the relationship. Ms Scott's view was relevant to the parties' intention at the beginning, but it did not decide what the relationship later became.

This is a practical point for employers. Offering a permanent agreement does not necessarily cure a working pattern that has already become permanent in substance. Nor does an employee's refusal of a permanent offer necessarily mean the employer can keep using a casual label if the actual arrangement is ongoing, rostered and predictable.

Ritchies knew the casual label was risky

In early 2024, Ms Scott raised concerns about the reduction in her hours. A Director of People responded by saying that Ms Scott had been offered a full-time contract before Christmas but had not returned it, and that Ritchies could not have her working regular hours on a casual contract because this was illegal.

The Authority treated this as significant. It showed that Ritchies itself was concerned that Ms Scott's employment had evolved towards permanent employment. The ERA was persuaded that the reduction in hours was influenced by an unsuccessful attempt to reduce the risk of Ms Scott being deemed permanent.

However, the Authority did not find that reducing her hours itself breached employment obligations. Even after the reduction, Ms Scott was still averaging about 30 hours per week over the final 14 weeks of employment. The problem was not simply the reduction. The problem was what happened next: the removal of shifts and the complete cessation of further work.

The toilet break route deviation

On 23 March 2024, Ms Scott was driving a regular Logan Park to Balaclava route. Instead of completing the route by finishing at the Opoho terminus, she bypassed the final two stops and drove the bus to her home in Normanby to use the toilet. There were no passengers on the bus at the time.

There were no toilet facilities at the Opoho terminus. Drivers who needed to use the toilet were generally expected to drive to the central Dunedin depot. Ms Scott said she went home because she considered the depot toilet facilities to be filthy and because she considered the soap ineffective for removing diesel from her hands. She also used the detour to check on her pets.

Ritchies was concerned that Ms Scott had failed to complete a contracted public service, had deviated from her route without authorisation, and had used a company vehicle for personal reasons. It invited her first to an investigation meeting and then, after she did not attend due to not yet arranging union representation, to a disciplinary meeting.

The first written warning was upheld

Ms Scott attended the disciplinary meeting with her union representative and responded to the allegations. Ritchies issued a first written warning. Ms Scott claimed the warning was an unjustified disadvantage, including because Ritchies escalated the matter from investigation to disciplinary process and because other drivers allegedly acted similarly without discipline.

The ERA found that the warning was procedurally fair. Ritchies had a legitimate basis to treat the issue as disciplinary, warned Ms Scott that the outcome could be up to and including dismissal, put the allegations to her, gave her an opportunity to respond, and genuinely considered her explanation. The Authority noted that the outcome letter addressed her responses and considered mitigating factors before deciding on a first written warning rather than a more severe outcome.

The ERA also found the warning was substantively reasonable. The Code of Conduct did not specifically say "do not drive a bus home during a break", but it did identify misuse of company property and deliberate misuse of company resources as disciplinary matters. Ms Scott should reasonably have understood that driving the bus home for her own personal reasons could constitute misuse of company property.

The Authority also noted that the concern was not only that she drove home. She had also not completed the scheduled route, bypassing the final two stops. Ms Scott understood that she was expected to complete the journey. The Authority accepted that a more severe outcome may not have been justified, but the first written warning was within the range of reasonable responses.

The real problem: no more shifts

Before the disciplinary meeting, shifts that had been scheduled for 30 March 2024 and 2 April 2024 disappeared from Ms Scott's app. She asked why they had been removed but did not receive an answer. At the disciplinary meeting, the missing shifts were discussed and Ritchies later said she would be paid for those days.

From about 30 March 2024 onwards, Ms Scott was not scheduled any further shifts. Ritchies suggested innocuous explanations, including possible app issues and operational rostering issues. The Authority was not satisfied by those explanations. It inferred from the timing and surrounding circumstances that the cessation of shifts was deliberate.

In July 2024 Ms Scott could no longer access the app. The Authority treated this as further support for the conclusion that the employment had effectively been ended.

Casual in name, permanent in substance

The Authority applied the real nature of the relationship test. It accepted that some factors pointed towards casual employment, including the original agreement and Ms Scott's ability to advise she was unavailable. But the stronger factors pointed the other way.

By the time Ritchies stopped scheduling Ms Scott, the Authority found that a permanent employment relationship had become established. Ms Scott was permanent in all but name.

The factors supporting that conclusion included:

• the regularity, consistency and volume of Ms Scott's work;
• her long-standing availability and the expectation that she would work scheduled shifts;
• rosters being issued in advance, creating predictable work obligations;
• the fact that most of her work was urban route work, despite the charter driver label; and
• the continuous nature of her engagement, rather than genuinely discrete casual shifts arising from unforeseen need.

Stopping shifts was a dismissal

Once the ERA found Ms Scott was a permanent employee, Ritchies could not simply stop providing shifts as though each engagement was separate. At that point, Ms Scott had a legitimate ongoing expectation of work. Ritchies' failure to continue providing shifts therefore amounted to a dismissal.

The dismissal was unjustified. Ritchies did not establish a valid substantive reason to end the employment, such as serious misconduct or redundancy. It also followed no process at all before ending the work. That fell well short of what section 103A of the Employment Relations Act 2000 required.

Lost wages and the Work and Income point

Ms Scott sought payment of the difference between what she would have earned at Ritchies and what she received from Work and Income as Jobseeker Support over the 13 weeks following dismissal. The ERA held that it still had to apply the statutory lost wages formula. It was required to award the lesser of actual loss or three months' ordinary time remuneration.

The Authority did not deduct Work and Income payments from the lost wages award. It noted that whether Ms Scott had to reimburse Work and Income after receiving the award was a matter for her to address with Work and Income.

Because Ms Scott's hours fluctuated, the ERA calculated ordinary time remuneration using her average weekly hours across the employment. It assessed her average weekly hours as 33 and used an ordinary time hourly rate of $30. The calculation was 33 hours per week, multiplied by $30, multiplied by 13 weeks. That produced $12,870 gross lost wages.

Compensation

Ms Scott sought $10,000 compensation for humiliation, loss of dignity and injury to feelings. The ERA regarded that as moderate and appropriate. It accepted that she suffered distress, loss of dignity and injury to feelings from the abrupt cessation of shifts.

The Authority was limited by the amount Ms Scott claimed and awarded the full $10,000.

No contribution reduction

The ERA considered contribution under section 124 of the Employment Relations Act 2000. It found that Ms Scott's actions did not contribute to the personal grievance. There was no reduction to either lost wages or compensation.

Why this case matters

This determination is useful because it shows how casual employment can evolve into permanent employment even where the employee signed a casual agreement and even where the employee previously declined a permanent contract. The Authority looked at the reality of the arrangement, not the label.

It also gives employers a warning about using reduced hours or cessation of shifts to manage the risk of casual employment becoming permanent. If the real relationship is already permanent, simply stopping shifts can be a dismissal. If the employer has no valid reason and follows no process, that dismissal will likely be unjustified.

For employees, the case shows that a lack of a formal dismissal letter is not fatal. A dismissal can occur where the employer's conduct effectively ends the employment relationship, including by removing and then ceasing shifts.

Practical takeaways

• The contract label is not decisive: a casual agreement does not prevent a later finding of permanent employment.
• Regular hours create risk: substantial and predictable work may establish an ongoing expectation of employment.
• Rosters matter: if shifts are allocated in advance and treated as accepted unless declined, that can support mutual employment obligations.
• Permanent offers are not magic: an employee declining a permanent agreement does not necessarily preserve casual status.
• Stopping shifts can be dismissal: where the worker is permanent in substance, quietly ceasing work can be an unjustified dismissal.
• Warnings still need analysis: the warning here was upheld even though the dismissal was unjustified.
• Work and Income payments are not automatically deducted: the Authority treated benefit reimbursement as a matter between the employee and Work and Income.
• Contribution must connect to the grievance: Ms Scott's conduct did not contribute to Ritchies stopping her shifts, so there was no reduction.
• Costs are separate: costs were reserved and could be determined later if the parties could not agree.

Read the full ERA determination (embedded)

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