Neil Armstrong v Surplus Brokers Ltd [2019] NZERA 235 - Casual employment dismissal, penalties for no agreement

If a casual employee is unfairly dismissed by their employer during a period of casual engagement, the employee can bring an unjustified dismissal personal grievance. "Casual" does not mean "no rights".

Strict conditions must be met for an employer to pay an employee pay-as-you-go holiday pay in casual employment and fixed-term employment placements that exceed 12 months.

Rachel Hankins was engaged as an accountant on a fixed term maternity-cover agreement due to end on 15 August 2025. The ERA found the fixed term complied with section 66 of the Employment Relations Act 2000, but Huhtamaki Henderson Limited prematurely ended the employment relationship by requiring the return of company property, cutting off IT access, and treating her engagement as concluded before the agreed end date. The Authority found unjustified dismissal and unjustified disadvantage, ordering $11,500 compensation and four weeks' salary.

ZZP was dismissed by the Commissioner of Inland Revenue on medical grounds after a lengthy absence and a failed return-to-work attempt. The ERA accepted that IRD had given ZZP a reasonable opportunity to recover and had been entitled to treat the medical evidence cautiously. However, the dismissal was unjustified because the decision maker relied on several concerns in the final decision letter that had not been put to ZZP for comment. Reinstatement and lost wages were declined, but compensation was assessed at $25,000 and reduced by 25 percent for contribution, resulting in $18,750 payable.

Jeanette Go was made redundant from her estimator role at Point Limited after a downturn in estimation work. Point accepted its redundancy process was flawed because it did not disclose the selection criteria and did not interview the other estimators. The ERA accepted there was a genuine business reason and that the outcome was unlikely to have changed, but found Ms Go was unjustifiably dismissed and disadvantaged by the flawed process. Point was ordered to pay $18,000 compensation and $5,769.23 gross lost wages. Penalties were declined and costs were reserved.

Selwyn McDonald was summarily dismissed on site by Traffica Roading Services Limited after a heated exchange with director Bashir Ahmed. The ERA accepted Traffica's account that Mr McDonald made serious disrespectful comments with racial connotations, but still found the dismissal unjustified because he was dismissed on the spot without a fair opportunity to respond. Remedies were reduced by 40 percent for contribution. Traffica was ordered to pay $9,000 compensation and $3,800 gross lost wages.