INTRODUCTION
CASUAL CONTRACTS
Definition of Casual Employment
ID to be a repentant employee.3 For this reason the courts have not established a definition of casual employment. These included casual employment, ? . most of the definitions of casual worker found in the awards are qu~ arbitr!)' and are therefore likely to be of little use in clarifying what casual employment is.
The Contract
COMMON LAW
A claim for wrongful dismissal will usually be limited to a claim that the notice period stated in the contract was not observed/Previously, the opinion was that compensation was limited to salary for the notice period, compensation and could not be claimed for people in need, etc. A dismissal is still generally only unfair if the notice period in the contract is not observed.
Wrongful dismissal
A claim for wrongful dismissal would still be limited by the duration of the contract which expressly states that there is no continuation of employment. Nor was it seasonal work".32 Due to the regular nature of the work, the court ruled that the employer had dismissed the employee by terminating the contract. If the court were to apply these principles to the contract, it would have to be verified whether the current and regular nature of the employment would be sufficient to disregard the contractual provision.
In this case, he held that while fixed-term contracts may be valid, they would only be where they were genuinely related to the operational requirements of the employer. The emphasis of the ruling was on the lack of operational need for fixed term contracts. A fixed-term contract will not expire automatically on the date specified in it for the purpose against the will of the employee if:.
The court that made its decision was influenced by the fact that the employee's bargaining power was at least equal to that of the employer. 34; [in] certain circumstances failure to renew a fixed-term or short-term contract when it expires may constitute a dismissal under section 27(l)(a) of the Employment Contracts Act". Similar or greater restrictions would be necessary to apply to casual employment in recognition of the continuous nature of the employment.
A personal complaint based on an allegation of sexual harassment may arise under section 27(d) of the Employment Contracts Act. Section 40(1) of the Employment Contracts Act provides that the court or tribunal may order one or more of:. The Court of Appeal upheld the Labor Court's description of the defendant as having behaved with "oppressive and tyrannical" arrogance. wages or other money lost by the employee as a result of the complaint:.
Implied terms
Fair and reasonable treatnJent
Tiffi EMPLOYMENT CONTRACTS ACT 1991
Unjustifiable dismissal
Casual employment cases
Fixed tenn contracts
If the employer fails to meet the burden of proof, in each individual case. that there was a genuine reason for the seasonal or other fixed-term employment contract and that the purpose of the contract is not to deprive the employee of the protection of a valid collective employment contract or the benefits of the personal grievance procedure required to be inserted into the contract by law. iii). The majority judgment47 first addressed the status of this contract in the state sector and the relevance of state law. It cited 1NT Worldwide Express (NZ) Ltd v Cunningham,51 and noted that where the contract is in writing, the nature of the contract depends on the rights and obligations i.
The court emphasized that simply allowing a fixed-term contract to end does not amount to a dismissal.53 It recognized the possibility that the use of a number of nominally fixed-term contracts was used to avoid the personal grievance provisions. However, it held that deciding that the expiry of a fixed-term contract could constitute dismissal would change the meaning of the term 'dismissal'. 55 This disregards the fact that the law was considered certain in this area prior to the adoption of the Employment Contracts Act, and that the legislature at that time chose not to change the law.
He suggested that a fixed-term contract could be considered permanent where there is an express or implied promise of renewal, a legitimate expectation of renewal on the part of the employee, where the contract is a sham or where evidence reveals that the substance of the employment is actually ongoing.58. The main effect of this case on the law relating to casual employment is that the court is likely to place more weight on the contract itself. Applying the principles of the judgment to the contract, the employer would be entitled to simply terminate the contract in accordance with its terms.
This means that a fixed-term contract must be genuine, otherwise it will be "classified as. In summary, he accepted that non-renewal of a fixed-term contract does not amount to a dismissal. But indicated that the contract must be analyzed to determine state whether the service is really for a fixed term or whether it is continuous.
The employee will have to show either that the deadline is false, or that the employer has made statements contrary to the deadline.59 A reasonable expectation of renewal will not alone be sufficient to challenge a termination. In Bongard v. Universal Business Directon·e/ 3, an employee refused to sign a new fixed-term contract that did not provide for statutory minimum holidays and other rights, and claimed that she had been constructively dismissed when her fixed-term contract was not renewed. However, this approach may need to be modified to take into account the approach of the Court of Appeal in The Pn·ncipa/ of Auckland College of Education v Hagg.66 This decision is particularly important given that the Court of Appeal did not none.
The relevance of the law on fixed-term contracts mainly depends on whether casual employment is categorized as a series of contracts or a continuous one. This suggests that the law on fixed-term contracts does not apply to casual employment.
Unjustifiable disadvantage
Another possible claim for undue prejudice may arise when the employer unilaterally reduces the number of hours an employee is scheduled to work on weekly. An expected number of hours is not expressed in the written contract, even though these matters are discussed before the contract is signed. It would seem very strange if an employee could claim an unfair disadvantage in one of these situations, but not be able to claim unfair dismissal if the contract is terminated by the employer.
Other Grounds
Discrimination
Sexual Harassment
In C v E6 it was decided that sexual harassment was a form of gender discrimination, and therefore a complaint could be made to the Human Rights Council. As such, a sexual harassment complaint can also be made to the labor tribunal or court, or to the human rights organisation. For similar reasons to discrimination cases, the Human Rights Conference may be a better forum for many workers.
As in cases of discrimination, the burden of proof is on the employee to prove that the harassment has occurred. It is clear that the view in NID Distribution Workers IOUW v AB Ltc/7 that the onus is the same as in contested paternity cases is no longer the correct law.
Harsh and Oppressive Contracts
Remedies
POLICY
On the other hand, employees are protected from the deprivation of their rights through ordinary employment by wearing temporary fixed contracts. While it seems reasonable enough to allow fixed-term contracts for genuine operational reasons, it does not seem reasonable to enforce contracts whose sole purpose is to avoid the provisions of the law. This has been reflected in the past by the courts' emphasis on the reasoning behind the contract.92 However, The Pnncipal of Auckland College of.
Originally, the in-person grievance procedure was only to be extended to those employees on collective contracts and to those on individual contracts who chose to have the. 34; It is clear that the use of fixed-term contracts is seen by some employers as a means of avoiding either liability for severance pay or personal complaints".96 Similar considerations would also apply to temporary employment. avoiding their responsibilities under the law is unreasonable and unfair.
As a matter of policy, employees on fixed or casual contracts should not be excluded from the protection provided by the Act. In the UK, the non-renewal of a fixed-term contract is treated as a dismissal.97 Legislation in France and Germany makes special provisions for part-time or temporary workers to receive the same rights as full-time workers.
CONCLUSION
The principle of employment at will has been rejected in New Zealand, this will allow it to be introduced inconspicuously. Since the courts cannot or do not want to develop the law in this area, Parliament is obliged to act. Otherwise, by its failure to act, Parliament will allow the principle of employment at will in New Zealand.
Nothing in this contact [sic] should be construed expressly or implicitly as a right or expectation of continued employment after each assignment. Each time you enter employment on a temporary basis, the following conditions apply. a) The number of hours worked per day and the start and end times per day are as agreed for each work period. The fact that you work 40 hours in a week does not in itself change your status from that of a casual job.
Your holiday entitlement of 6% of gross salary will be withheld and paid at the end of each period of casual employment. Upon termination of employment, either party must give at least [sic] one hour's notice. If employment is terminated without the prescribed notice, one hour's wages shall be paid or forfeited, as the case may be.
I (full name) declare that I have read and understood the above terms of employment and fully accept them.
