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

Unfair Dismissal Cases 36 Casual Employment 3

In Neil Armstrong v Surplus Brokers Ltd [2019] NZERA 235, the ERA found a casual employee was unjustifiably dismissed during a period of engagement. The Authority awarded $9,000 compensation (after 10% reduction for contributory conduct) and imposed a $1,000 penalty for failing to provide an intended employment agreement.

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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.

Non-publication: The determination includes an order prohibiting publication of the name of another employee (referred to as "Mr R") for health reasons.

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)
Direct link to the full ERA determination (PDF): https://determinations.era.govt.nz/assets/elawpdf/2019/3d26c0c906/2019_NZERA_235.pdf

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
Note: The Authority recorded that a 10% reduction was applied to mark contributory conduct by Mr Armstrong that contributed to the situation giving rise to the grievance.

Read the full determination

This is a public document hosted on the ERA determinations database. If the embedded document does not load on your device, use the button below to open it in a new tab.

Open [2019] NZERA 235 (PDF)

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Need help with an ERA matter? If you are dealing with a personal grievance (PG), a dismissal risk, casual employment issues, or you need representation at mediation / the ERA, contact us.

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