December 20 2017
In these rural briefs, we’re looking at the two hot topics for farmers this summer. The health and safety act is in force and the courts are issuing hefty penalties for non-compliance. We also have a warning about hiring casual help. Read on to avoid getting burned.
Casual or fixed-term employment: what’s the difference?
You may need to hire help on the farm over Summer to make hay while the sun shines. Depending on your needs, you’ll hire a mix of casual and fixed-term employees. In both cases, you must have a written employment agreement in place before work begins. A recent case demonstrates the consequences and cost of getting it wrong.
Employers David Lee-Jones and Cathy Douglas hired farm hand, Phil Stewart, on a temporary basis for two weeks, while they looked for a permanent worker to fill the role. The contract was renewed twice. When he was let go, Phil Stewart claimed he had been unjustifiably dismissed. He made his argument based on the claim he had been given a permanent job and that he didn’t notice it was a casual agreement.
The Employment Relations Authority investigated to determine the true nature of the employment relationship. Phil Stewart could have no expectation of ongoing employment if the contract was casual. If the agreement wasn’t casual, it had to be a fixed-term or ongoing employment relationship.
David Lee-Jones provided evidence that the employment relationship was temporary. Phil Stewart accepted he had known this after facing evidence from his ex-girlfriend. He said he understood David Lee-Jones and Cathy Douglas were looking for a permanent farm hand to fill the role, and claimed his temporary job should have been considered a trial for the permanent position.
After hearing the facts, the ERA determined the job was not intended to be ongoing. Valid fixed-term arrangements must state the way employment will end and the reasons for doing so. This is specified in s66 of the Employment Relations Act 2000. If these conditions aren’t met, the employer cannot rely on the fixed-term nature of the agreement to dismiss an employee. In this case, the agreement contained no such clauses.
The ERA reviewed case law to determine whether the arrangement was casual or fixed-term. While both are temporary forms of employment, casual workers engage in irregular, short stints of work, whereas fixed-term employees have set hours and days of work. Fixed-term arrangements must have specific requirements, such as project work or covering for an employee on parental leave.
While Phil Stewart’s employment agreement described his position as casual, the nature of his working arrangements didn’t agree with a casual contract. He had been engaged in two week periods to fill in for a permanent worker, indicating the arrangement wasn’t casual. The fact Phil Stewart said the position was ‘temporary’ also indicated the role was fixed-term in nature.
The ERA concluded the position was fixed-term, and that the agreement didn’t comply with s66 of the Act, making Phil Stewart’s dismissal unjustified. However, he wasn’t awarded any compensation because he gave little evidence to support such a claim. The ERA was also unconvinced that Phil Stewart had been hurt or humiliated by the dismissal as he both knew and accepted that it was coming. They ordered David Lee-Jones and Cathy Douglas to pay $7,705 gross in lost wages.
This area of employment law can turn your rural paddock into a mine field. It pays to talk to our rural lawyers before you hire new workers.
First health and safety decision comes at a big cost
The grace period for health and safety compliance is over. If you haven’t ensured you’re complying with these new laws, you need to speak to our rural lawyers immediately about farm health and safety. Not only is it vital to protect the people who work in your farming operation, failure to comply comes at a very large cost.
If you read out article Four more hazards to note, you’ll know we were waiting for the first sentencing under the new health and safety act. In the case of WorkSafe New Zealand v Budget Plastics (New Zealand) Ltd, the court imposed hefty penalties for breaches.
Budget Plastics were already in the crosshairs after they failed to implement recommendations made in an earlier health and safety audit. Their practices continued to be non-compliant with several industry standards and guidelines. Then an employee had his hand amputated after it was caught in a plastic extrusion machine. Bad news.
The new act gives the court the power to fine a company so heavily it’s possible to put them out of business. In this case, this wasn’t considered necessary, but the court did impose a $100,000 fine, reparation of $37,500 and costs of $1,000. We’re sure you can imagine what kind of penalties would be imposed if the accident had been worse.
Don’t start sweating yet. A new government-endorsed health and safety toolkit is now available. We advise you to look at it. SafePlus is a health and safety toolkit developed and endorsed by the government. It’s available to all New Zealand businesses, including those in the rural sector.
SafePlus currently contains resources and guidance, independent on-site assessment and advisory services, and an online self-assessment tool due to roll out in the middle of 2018.
The independent on-site assessment and advisory service also contains a register of independent accredited assessors, allowing you to directly engage with assessors.
Follow this link for more information about SafePlus. Talk to us if you have any farm health and safety concerns.