This page summarises and displays the Employment Relations Authority (ERA) determination Neil Armstrong v Surplus Brokers Limited [2019] NZERA 235. The case addresses (1) the difference between casual and ongoing employment, (2) when a decision to stop offering work can still amount to a dismissal, and (3) penalties for failing to provide an intended employment agreement.
Quick facts
- Citation: Neil Armstrong v Surplus Brokers Limited [2019] NZERA 235
- ERA registry: Auckland
- Member: Robin Arthur
- Investigation meeting: 22 January 2019
- Determination date: 18 April 2019
- Work period: November 2017 to April 2018 (seven events / shows)
- Applicant representative: Lawrence Anderson (advocate)
What happened
Mr Armstrong worked as a sales assistant at shopping mall displays and events (field days, car shows) promoting Road Chief products. During a Hamilton event in early April 2018, an incident occurred between Mr Armstrong and another employee (referred to as "Mr R") while sharing motel accommodation. Mr Armstrong left the room early in the morning and contacted Police.
After the incident and related issues (including a complaint from the motel and allegations about a broken mirror), the manager advised that the company would "not be continuing our job role offers" with Mr Armstrong. Mr Armstrong treated that as a dismissal and raised a personal grievance.
Key legal issues
- Casual vs ongoing employment: did the parties have ongoing obligations between assignments, or only obligations during actual periods of work?
- Dismissal: did the employer's decision to stop offering work amount to a dismissal during a period of casual employment?
- Remedies and penalties: if unjustified, what remedies applied, and were any penalties warranted?
Practical employer takeaway
- Casual does not mean risk-free: during a period of engagement, the employer still needs a fair and reasonable approach (section 103A).
- Document the relationship properly: if you prepare an employment agreement, you must actually provide it (section 63A).
- Accommodation and safety planning matters: if staff are required to travel, consider safety, fatigue, and accommodation arrangements to reduce foreseeable risk.
Key findings (plain English)
- Casual employment: the Authority found the real nature of the relationship was casual, with work offered and accepted on an assignment-by-assignment basis.
- Unjustified dismissal: the Authority concluded the employer unjustifiably dismissed Mr Armstrong during a period of casual employment.
- Lost wages declined: while lost wages were claimed, the evidence did not support an award for lost wages (including issues around mitigation and health).
- Holiday pay claim not ordered: the Authority did not make an order for holiday pay. Although the pay-as-you-go requirements were not met (no written agreement and no payslips provided), the wage records showed holiday pay had in fact been included in the wages paid for each assignment.
- Penalty imposed: a penalty was imposed for failing to provide Mr Armstrong with an intended employment agreement (section 63A).
- Costs: costs were reserved, with a timetable set if the parties could not resolve costs by agreement.
Orders made
Ordered to be paid within 28 days
- $9,000.00 compensation for humiliation, loss of dignity and injury to feelings (after a 10% reduction for contributory conduct)
- $1,000.00 penalty to the Authority (for transfer to the Crown Account) for not providing an intended employment agreement
Read the full determination
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