in the employment court wellington empc 374/2015 · 2016-07-01 · [9] on 20 january 2011, mr...
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DAVID SAVAGE v CAPITAL & COAST DISTRICT HEALTH BOARD NZEmpC WELLINGTON [2016]
NZEmpC 83 [30 June 2016]
IN THE EMPLOYMENT COURT
WELLINGTON
[2016] NZEmpC 83
EMPC 374/2015
IN THE MATTER OF
a challege to a determination of the
Employment Relations Authority
BETWEEN
DAVID SAVAGE
Plaintiff
AND
CAPITAL & COAST DISTRICT
HEALTH BOARD
Defendant
Hearing:
18-19 April 2016
(heard at Wellington)
Appearances:
G O'Sullivan and N Flint, counsel for the plaintiff
H Kynaston and J Howes, counsel for the defendant
Judgment:
30 June 2016
JUDGMENT OF JUDGE B A CORKILL
The problem: casual or permanent?
[1] Mr Savage is a Registered Nurse (RN) who wished in 2011 to be employed
on a casual basis rather than on a permanent basis. The Capital & Coast District
Health Board (the Board) agreed to his request. In May 2014, after a complaint had
been lodged against Mr Savage, the Board said it would not offer him any more
work as a casual. He says that at all times the reality of the employment
arrangements were that he was permanent, so the Board could not cease employing
him.
[2] The Employment Relations Authority (the Authority) investigated as a
preliminary question the issue of status, the parties having agreed that if it was held
Mr Savage was in permanent employment the Authority would need to go on and
consider whether he was entitled to a compliance order. However, the Authority
determined he was a casual employee.1 Mr Savage challenged that determination on
a de novo basis.
[3] The issues for this Court are:
a) What did the parties agree as to Mr Savage’s employment status in
February 2011?
b) What was the nature of the relationship in May 2014?
Chronology
[4] Mr Savage became a permanent RN on 1 September 2005. Thereafter he was
employed by the Board under several employment arrangements.
[5] The first of these was as a RN from August 2006. In December 2008, he
resigned from that permanent position, stating that for family-related reasons he
needed flexibility. He told Mr Cate, who was the Casual Pool Coordinator of the
Mental Health Services Directorate, that he was unable to commit to the rostering
and rotation required of a full-time or permanent employee, given child-care
responsibilities.
[6] Mr Savage was accordingly offered a position as a casual RN, with a
commencement date of 14 January 2009. In this capacity he worked in six wards.
He was not part of a standard roster, although he worked each week. This
arrangement continued until February 2010.
[7] Later that year Mr Savage applied for and was appointed to a full-time
fixed-term role as a RN, from May to July 2010.
[8] Next, Mr Savage applied for and was appointed to a permanent RN role as an
RN from 21 August 2010. He worked solely at Purehurehu, on a regular roster.
[9] On 20 January 2011, Mr Savage wrote to Mr Cate and his colleague Mr Klue,
who was a Team Leader and Associate Operations Manager. In his email,
1 Savage v Capital & Coast District Health Board [2015] NZERA Wellington 111.
Mr Savage stated that he wished to be transferred to the casual pool. He said he was
finding it increasingly difficult to manage a roster that had a four-on, two-off pattern
for family reasons; he thought the flexible nature of the casual pool would enable
him to meet his objectives, and he would be able to reduce his hours a little to meet
his needs. He recognised that he would no longer be working only at Purehurehu.
He therefore gave notice of his wish to terminate his employment as a permanent
RN, providing his request to be a member of the casual pool was granted.
[10] This request was considered and granted. Mr Savage was offered a position
as a casual RN by letter dated 7 February 2011. A commencement date of
21 February 2011 was proposed.
[11] The letter of offer referred to the fact that Mr Savage would hold the position
of “Casual Mental Health Staff Nurse”, on these terms:
A casual employee is one who is engaged to work as and when required with
no set hours or days of work. Each engagement undertaken by you is a
stand-alone employment arrangement which ends at the completion of the
work required. No severance is payable to you when you complete any
casual engagement with C&CDHB. There is no obligation on C&CDHB to
offer you employment, and likewise you are under no obligation to accept
offers of casual work.
…
Attached is the role/position description which outlines the functions of this
position. The role/position description will be reviewed with you on a
regular basis, and mutually agreed changes will be made, as appropriate, to
keep it up to date.
As you are an existing member of the PSA, your salary will be based on
the DHBs/PSA Mental Health and Public Health Nursing MECA which
is $61,273 per annum, proportionate to hours worked, which is Step 5 of
the PSA Mental Health Inpatient Nurses Scale.
…
As a casual employee you will be paid 8% of your taxable earnings at the
completion of each casual engagement, in full recognition of your holiday
entitlements.
If you are engaged on a frequent basis, you may become eligible for sick and
bereavement leave provided the extent of your engagement meets the
minimum requirements stipulated in the Holidays Act 2003 and its
Amendment Act 2004. During periods of casual engagement you will be
insured for work related personal injury.
Because of the flexibility that casual employees enjoy, there is a potential for
such employees to end up working excessive hours which may become a
safety and health risk for the employee. You are required to declare to your
employing manager before each engagement if you have already exceeded
40 hours in any five consecutive days and if you have not had at least a
9 hour break since the last engagement working at C&CDHB or any other
organisation.
Capital and Coast DHB has a range of policies and it is a condition of your
employment that you comply with these … these include among others:
the Code of Conduct (which you should read and understand);
our policies and requirements for managing and applying for all
types of leave, …
[12] The letter was accompanied by an acceptance form, which amongst other
things referred to the fact that Mr Savage was entitled to seek independent advice
about the offer and the agreement; also attached was a position description for a
registered nurse operating from the casual pool.
[13] On the casual employment offer form, Mr Savage recorded that he was a PSA
member and as such he accepted the casual employment offer on the basis he would
be employed under the New Zealand (except Auckland Region) District Health
Board/PSA Mental Health & Public Health Nursing Multi-Employer Collective
Agreement (the MECA); that document covered the period 1 April 2010 to 30 April
2012.
[14] It defined permanent, fixed-term and casual employees as follows:
Casual employee means an employee who has no set hours or days of work
and who is normally asked to work as and when required. Casual
arrangements shall not be used to deny staff security of employment. The
employer reserves the right, however, to employ casual employees where
necessary to meet the demands of service delivery.
…
Full-time employees means an employee who works not less than the
ordinary or normal working hours set out under the hours of work clause in
this Agreement.
…
Normal/Ordinary hours means 80 hours per fortnight.
Part-time employee means an employee, other than a casual employee,
employed on a permanent basis but works less than the ordinary or normal
hours set out in the hours of work clause. Any wages and benefits e.g. leave;
will be pro rata according to the hours worked unless specifically stated
otherwise in this Agreement.
…
Permanent employee means an employee who is employed for an indefinite
term; that is, an employee who is not employed on a temporary or casual
basis.
[15] There are no standalone provisions relating to casual employees in the
MECA. References to such employees are contained in provisions which also relate
to other classes of employee. This is not ideal because at times it is difficult to
discern precisely what provisions apply to particular classes of employee.
[16] The definition of full-time employee contains a cross-reference to an “hours
of work clause”. That is a reference to cl 10 of the MECA which contains detailed
provisions relating to ordinary hours of work (normally 80 hours in each two-week
period). Usually a roster period would be four weeks or greater, notified at least
three weeks prior to commencement of the roster period. There were particular
requirements for hours of work, (including the times of day, days of the week and
any over-time or on-call requirements; all of which had to be specified) and as to
processes for either occasional variations of employment, or long-term/permanent
changes to hours of work requirements.
[17] The MECA which was in force on the date of the letter of offer was replaced
with a new MECA on 28 October 2011 which underpinned the employment
arrangements from then on. Although it was due to expire on 30 April 2014,
bargaining had been initiated so that it continued in force by virtue of s 53(2) of the
Employment Relations Act 2000 (the Act), and its terms continued until a subsequent
MECA was signed on 4 November 2014.
[18] Mr Savage worked as a member of the casual pool from 21 February 2011 to
27 May 2014, when the Board wrote to him stating that it would not be rostering him
on for duty until further notice. The letter recorded that since Mr Savage had
accepted a position as a casual employee, the Board was under no obligation to offer
him employment, and he was under no obligation to accept any offer of casual work.
In the particular roster period during which the letter was sent, Mr Savage had been
offered casual work on four subsequent days, which the DHB stated he would not be
required to work, although he would receive payment for those days. The letter
confirmed that no further shifts would be offered.
[19] It went on to state that a complaint had been received from another staff
member against Mr Savage, and that any investigation by the Board would “be put
aside” until inquiries by an external agency which was also considering the
complaint were finished.
What does each party contend?
[20] Mr Savage says that the agreement of 7 February 2011 was not an
arrangement that he would be employed as a casual employee. He says that from the
start he worked on an “ongoing casual basis”, which meant he was a permanent
employee. The MECA required such a conclusion when it stated that agreements
could not be used to deny staff security of employment.
[21] Mr Savage described himself as being a “permanent employee with flexible
work hours and duty stations”. He said this was confirmed by the fact that he
worked regularly every week for over three years; that he could take sick and
bereavement leave, and was treated as a permanent employee on matters such as
applying for leave, and for training purposes.
[22] Alternatively, Mr O’Sullivan, counsel for the plaintiff, argued that were the
Court to conclude that the effect of the documentation entered into on
7 February 2011 was that Mr Savage was a casual employee, that status altered over
time. After six months a pattern of work and the acquiring of entitlements such as
sick leave meant Mr Savage had a legitimate expectation of employment on a
permanent basis.
[23] Turning to the Board’s case, Mr Kynaston, counsel for the defendant,
submitted that the intention of the parties was very clear: they had entered into and
remained in a casual employment relationship. It was essential for the Board to have
access to a pool of casual employees in Mental Health Addiction and Intellectual
Disability Services (MHAIDS). As a member of that pool, Mr Savage was able to
determine where, when, how often and for how long he worked at any time, which
was important to him for family and financial reasons. Mr Savage had worked
previously as a permanent employee on two occasions, and once on a fixed-term
agreement; twice he had chosen to leave permanent for casual employment. If he
wanted a permanent RN position, he could have stayed in his permanent role, or he
could later have applied for one. However, he wanted to work as a casual employee,
and it was agreed that he could do so.
[24] Were the Court now to decide that Mr Savage was a permanent employee so
that the Board was obliged to offer him work, that would fundamentally change not
only the parties’ bargain, but the real nature of the relationship between them. Such
a conclusion would be inequitable, because Mr Savage would in effect have received
all of the benefits of casual employment such as the flexibility to work when he
wanted to, together with the benefits of permanent employment, primarily security of
work in employment, contrary to the parties’ express agreement.
Casual or permanent – the legal tests
[25] As I have already mentioned, the Court must first determine what obligations
were assumed by the parties at the outset; then it must decide the nature of the
relationship which had been created, by the time the relationship problem arose, that
is as at 27 May 2014.
[26] In determining what was agreed at the outset, it is necessary to construe the
documents which go to make up the parties employment agreement. As Tipping J
stated in Vector Gas Ltd v Bay of Plenty Energy Ltd, the ultimate objective is to
establish the meaning the parties intended their words to bear.2 The necessary
inquiry concerns what a reasonable and properly informed third party would
consider the parties intended the words of their contract to mean. The starting point
is the natural and ordinary meaning of the language used by the parties; if the words
used are not on their face ambiguous, then the Court should not readily accept that
2 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444.
there is any error in the contractual text. But it is nonetheless a valid part of the
interpretation exercise for the Court to “cross-check” its provisional view of what the
words mean against the contractual context.3
[27] Evidence as to what one party thought the agreement meant is not relevant,
and parties are not allowed on an interpretation issue to tell the Court what they
intended the words to mean or what they thought the words meant.4
[28] Having established what the relationship was when it was first established,
and because the nature of relationships can change over time, it is then necessary to
assess the nature of the relationship at the appropriate time, here May 2014. Did the
relationship change over time? The question requires an analysis of the evidence
provided by the parties as to how their relationship operated in practice.
[29] At both stages, it will be necessary to consider whether Mr Savage was
employed casually. On that topic, the dicta of Judge Couch in Jinkinson v Oceania
Gold (NZ) is helpful.5 He explained that a question of status may well turn on
whether there was a “sufficient mutuality of obligation between the parties” at the
relevant time.6 The Judge went on to say:
[40] Against this background, it is also important to understand what is
meant by the terms ‘casual’ and ‘ongoing’ or ‘permanent’. Whatever the
nature of the employment relationship, the parties will have mutual
obligations during periods of actual work or engagement. The distinction
between casual employment and ongoing employment lies in the extent to
which the parties have mutual employment-related obligations between
periods of work. If those obligations only exist during periods of work, the
employment will be regarded as casual. If there are mutual obligations
which continue between periods of work, there will be an ongoing
employment relationship.
[41] The strongest indicator of ongoing employment will be that the
employer has an obligation to offer the employee further work which may
become available and that the employee has an obligation to carry out that
work. Other obligations may also indicate an ongoing employment
relationship but, if there are truly no obligations to provide and perform
work, they are unlikely to suffice. Whether such obligations exist and there
extent will largely be questions of fact.
3 Vector Gas Ltd, above n 2, at [80] per McGrath J, [19] and [26] per Tipping J.
4 Gibbons Holdings Ltd v Wholesale Distributors Ltd [2007] NZSC 37, [2008] 1 NZLR 277 at
[56] per Tipping J. 5 Jinkinson v Oceania Gold (NZ) [2009] ERNZ 225 (EmpC) at [37].
6 At [39].
(Emphasis added)
[30] In various cases, courts have referred to a range of indicia which might assist
the assessment of the real nature of the relationship. Both parties focused on the
description of indicia referred to by Judge Couch in Jinkinson, as follows:7
a) the number of hours worked each week;
b) whether work is allocated in advance by a roster;
c) whether there is a regular pattern of work;
d) whether there is a mutual expectation of continuity of employment;
e) whether the employer requires notice before an employee is absent or
on leave; and
f) whether the employee works to consistent starting and finishing times.
[31] Since both parties shaped their submissions around these criteria, I shall
consider these factors in detail.
[32] I emphasise that the key question for present purposes will be whether, when
considering the nature of the employment relationship, the parties have mutual
employment related obligations between periods of work.8
What did the parties agree at the outset?
Letter of offer
[33] On its face, the letter of offer clearly stipulated that Mr Savage would be a
casual employee. It confirmed:
He would be engaged to work as and when required.
There would be no set hours or days of work.
7 Jinkinson v Oceania Gold (NZ), above n 5, at [47]. See also Lee v Minor Developments Ltd t/a
Before Six Childcare Centre EmpC Auckland AC 52/08, 23 December 2008, and Baker v St John
Central Regional Trust Board [2013] NZEmpC 34, [2013] ERNZ 449 at 455. 8 Jinkinson v Oceania Gold (NZ), above n 5, at [40].
Each engagement would be a standalone employment arrangement.
No severance would be payable when a casual engagement was
concluded.
The Board had no obligation to offer employment, and Mr Savage had
no obligation to accept offers of casual work.
Payment was determined by reference to a salary figure, but it was
expressly stated that payment would be proportionate to hours of work.
Holiday entitlements would be paid at the completion of each casual
engagement, at eight per cent of taxable earnings.
Sick and bereavement leave entitlements would be paid according to
statutory entitlements for casual workers under the Holidays Act 2003.
As a casual employee, the arrangements would be “flexible”.
[34] Although these features point to Mr Savage being a casual employee at the
outset, reliance is placed on two aspects of the letter of offer which Mr O’Sullivan
contends point the other way.
[35] The first of these is a reference to a requirement that Mr Savage was to
comply with the Board’s Code of Conduct. Emphasis was placed on the definitions
of misconduct and serious misconduct which refer to behaviour that is likely to bring
the Board into disrepute. The document also endorses the standards of integrity and
conduct described by the State Services Commission, one of which relates to
trustworthiness; activities are to be avoided which may harm the reputation of the
employer, whether those activities are “work or non-work” related.
[36] In my view, these ethical obligations apply just as much to a casual employee
between periods of work as they do to a permanent employee. But, whilst a casual
employee has a “non-work” obligation between periods of work, that obligation is
not so significant as to lead to a conclusion that the individual is a permanent
employee. That is because it is outweighed by the more significant point that
between assignments, the employer has no obligation to offer the employee further
work which may become available, and the employee has no obligation to carry out
that work. It is that factor which is the strongest indicator of ongoing employment.9
[37] Secondly, Mr O’Sullivan submitted that a reference in the letter of offer to
comply with the Board’s policies, and specifically those which required applications
to be made for “all types of leave,” was also a strong pointer to Mr Savage being a
permanent employee. For instance, one of the policies related to “the granting of
leave without pay”, for which an application should be made.
[38] The policy itself contains no exclusion for casual employees. However,
common sense suggests that a person who is genuinely employed on a casual basis
does not have to apply for leave without pay. The employee simply declines a
request to work. I find that, considered objectively, the parties would not have
intended that such a policy would apply to a casual employee.
[39] The policy as to annual holidays specifically refers to the fact that casual
employees would receive an additional percentage of their pay in lieu of annual
leave. Again, an application for holiday leave would not arise for a casual. Any
issues as to the taking of a break by such an employee would be dealt with by the
employee simply stating that he/she would not be available for work at a particular
time. I note that Mr Savage said he believed he needed to apply for this type of
leave, but that is not what the arrangements which the parties entered into required.10
[40] A policy was produced for bereavement leave; it contained a cross-reference
to s 63 of the Holidays Act 2003, which it said would apply for casual employees. I
will discuss this provision more fully later, but its effect is that after a period of six
months when certain thresholds have been met, there is an entitlement for
bereavement leave, and the employee must notify the employer of his/her intention
to take such leave.11
So, if a casual employee had been booked to work a particular
shift and then wished to utilise bereavement leave, a request would understandably
need to be made. That does not mean the employee was permanent.
9 See Judge Couch’s observation in Jinkinson v Oceania Gold (NZ), above n 5, at [41].
10 See this judgment at [27].
11 Holidays Act 2003, ss 63 and 64.
[41] I find that the effect of this particular policy was to confirm that the relevant
statutory provisions would apply. The same provisions of the Holidays Act 2003
apply to the domestic leave policy, and to the same effect.
[42] Mr Savage relied on a provision in the MECA which provided for 10 days
sick leave for full-time employees and an obligation to apply for leave.12
He was not
a full-time employee according to the definition of that term, so the MECA provision
did not apply to him; rather the provision of the Holidays Act 2003 did.
[43] The reference in the letter of offer to applications for leave is not a factor
suggesting that the parties intended Mr Savage would be a permanent employee.
[44] Assessed on an objective basis, I find that the offer which Mr Savage
accepted was to work as a casual employee.
Role description
[45] This document accompanied the letter of offer. It referred to the position of
RN, who would operate within the casual pool. This was described as follows:
Service perspective – Casual Pool
This is a staffing pool which hires individuals on a casual basis to fill
staffing gaps arising from planned and unplanned leave of permanent
employees or due to sudden and temporary need for additional resources.
The individuals may be kept on the books on an ongoing basis for easy
access to them in the future but there is no obligation on the employer to
rehire them or the employee to make themselves available. They are hired to
work, as and when required for that period only after which there is no
further relationship.
[46] After describing the casual pool, the document referred to a “role
perspective”. It was explained that a prerequisite for the RN role was registration
with the New Zealand Nursing Council, and the maintenance of a current annual
practicing certificate. Then followed this sentence:
Application onto the C&CDHB Professional Development and Recognition
Programme (PDRP) at competent, proficient or expert level is required.
12
Clause 22.1.
[47] Mr Cate explained that this was a programme of competency which operated
at three levels. It was offered to permanent employees and not to casual staff, at
least in these terms. The benefits which an RN would obtain by moving through the
three levels such as enhanced wages were not benefits available to a casual
employee. Mr Cate said the reference to PDRP was erroneously included in the job
description. That said, a casual nurse would be required to maintain annual core
competencies and area specific competency requirements, as referred to elsewhere in
the document.
[48] I do not consider that the erroneous reference to PDRP being a programme
applying to a permanent employee should outweigh the specific and elaborate
references in that document to the casual status of the employee.
[49] The document also sets out in some detail the requirements of an RN; that
information does not point one way or the other, because a casual RN would plainly
need to carry out the same tasks as would a permanent RN who was being replaced
temporarily on a particular shift.
[50] I find that the job description confirms that a casual role was intended; and
that it confirmed that work would not be offered between assignments.
MECA
[51] The letter of offer referred to the MECA. It clearly provided for the
possibility of casual employment, which would not involve set hours.
[52] However, the issue which was raised for Mr Savage was the acknowledgment
that casual agreements were not to be used to deny staff security of employment.
[53] Mr O’Sullivan relied strongly on the observations of Chief Judge Colgan in
Muldoon v Nelson Marlborough District Health Board, when consideration was
given to the definition of “casual” employee in the MECA which applies in this
case.13
The Court said:
13
Muldoon v Nelson Marlborough District Health Board [2011] NZEmpC 203, [2011] ERNZ 271.
… That means that District Health Boards must not engage staff either as
casual or fixed-term employees other than for bona fide purposes as
contemplated by the employment agreement. In the case of casuals, the
common law of employment and, in the case of fixed-term employees, s 66
of the Employment Relations Act 2000 limit District Health Boards as
employers from misusing casual or temporary staff for the inherent
advantages of those arrangements to employers and corresponding
disadvantages to employees. This constraint is intended to encourage
Boards to engage permanent employees while still allowing for appropriate
use of casual and temporary staff. In the case of nurses, the evidence
establishes that there is at least an informal career structure with the
defendant by which nurses wishing to be appointed to permanent positions
can progress from casual and/or temporary assignments to full-time or
part-time permanent status, albeit on merit rather than simply by seniority.
[8] So, in the case of casual nurses, the definition of ‘casual employee’
denies the Board the ability to engage a nurse who works set hours or days
of work, or otherwise than as and when required, on what I would describe
as an ongoing casual basis. To do so would be to deny such staff security of
employment.
[54] The Court went on to emphasise that the definition also reserved to the
employer the entitlement to employ casuals “where necessary to meet the demands
of service delivery”.14
[55] It is evident from the discussion in Muldoon that on the one hand casual
employees could be employed, but on the other this option should not be used to
deny staff security of employment. The retention of casuals needed to be undertaken
on a bona fide basis. Specific reference was made to the possibility that nurses
wishing to be appointed to permanent positions could progress from casual
assignments to permanent assignments, as an aspect of career progression.
[56] The present circumstances, however, involve an entirely different factual
context. For personal reasons Mr Savage resigned from a permanent role so as to
obtain the flexibility inherent in a casual role. I am satisfied that his reasons for
doing so were carefully scrutinised by Mr Cate and Mr Klue, and they agreed to
accommodate this wish because the request was genuine. Mr Cate was certain that
when discussing the prospect of Mr Savage assuming such a role, he would have
made it clear that it was “risky to be on the casual pool”. He said that he would have
emphasised that there was no promise of work.
14
At [10].
[57] For his part, Mr Savage said that he did not understand that he would be
working as a casual employee on an ongoing basis and all he was interested in was
flexibility. Given his previous experience of working both on a permanent and a
non-permanent basis (fixed-term and casual), his specific request to move from a
permanent role to a casual role, and the specificity of the documentation with which
he was provided, I do not accept that the consequences of taking this step were
unclear to Mr Savage. I prefer the account given by Mr Cate, particularly as he was
certain he would have made the distinction clear to Mr Savage.
[58] Given the particular circumstances, I find that the Board’s offer to employ
Mr Savage on a casual basis was bona fide; in no way was it intended to compromise
Mr Savage’s career options. The casual arrangement was not being used to deny
Mr Savage security of his employment.
[59] The second issue to arise from a consideration of the MECA relates to the
position during periods of actual work or engagement.
[60] It is clear from the definitions referred to earlier that there is a fundamental
distinction between a casual employee, and a permanent employee whether full-time
or part-time. Under the MECA, a casual has no set hours or days of work, and is
normally asked to work as and when required. That is, the employer would decide
when it wished to ask the employee to accept work; but the employee could only be
“asked”. The employer could not insist that the employee work on any particular
shift. This is to be contrasted with the position of a permanent employee, who would
normally be required to work the days and hours assigned to that person.
[61] The effect of these arrangements is that there is no mutuality of obligation
between work assignments for a casual employee.
Conclusion as to parties’ agreement at the outset
[62] There is no doubt that from an objective standpoint, the parties entered into
an agreement that Mr Savage would be a casual employee. A cross-check of that
conclusion against the context confirms that this is what was intended. As
Mr Kynaston put it, Mr Savage wanted to be a casual employee and that is what he
got.
What was the nature of the relationship as at 27 May 2014?
[63] As explained earlier, the issue as to the nature of the parties’ employment
relationship as at 27 May 2014 may be assessed by considering various indicia,
which I now consider.
The significance of the allocation of work by roster
[64] In some previous decisions, the introduction or existence of a roster was of
particular significance, particularly if it was the means by which work was offered
well in advance of the time at which it was to be performed.15
In other decisions,
however, the use of a roster where it was a tool for determining availability of
workers has not been regarded as a determinative factor.16
The short point is that the
use of a roster is but one factor to be considered in the overall assessment as to
whether there was ongoing employment, and the manner in which the roster was
used will need to be considered.
[65] It is therefore necessary to describe Mr Savage’s actual work arrangements in
some detail.
[66] During the period under review, there were over 100 mental health support
workers and RNs who were members of the Board’s casual pool. They provided
short term cover for sickness, leave or training of permanent staff across 11 units of
MHAIDS, and provided support for high-needs clients when required.
[67] Members of the pool would also fill such gaps as may exist due to a perpetual
shortage of RNs. Casual staff would be used both for ordinary hours as well as
overtime.
15
For example Jinkinson v Oceania Gold (NZ), above n 5, at [36]; and Barnes (formerly Kissell) v
Whangarei Returned Services Association (Inc) [1997] ERNZ 626 (EmpC), at 636. 16
For example Baker v St John Central Regional Trust Board [2013] NZEmpC 34, [2013] ERNZ
449 at [25].
[68] The evidence establishes that 80 percent of RN’s hours within the service
were provided for by permanent staff; 20 per cent of hours were offered to casual
RNs.
[69] Permanent employees are required to work rostered and rotating shifts – that
is, morning, afternoon and night shifts. They are employed to work in a specific unit
or team, and may not be moved to different work areas without negotiation and
agreement.
[70] In the first instance, a ward generates a roster up to several months in
advance, delineated into weeks. That document is populated with the names of
permanent staff automatically.
[71] Permanent staff may have applied for and been granted leave in accordance
with the Board’s policies; if so, the roster will reflect this. In addition, staff may ask
and be permitted to swap, alter or add to their assigned shifts.
[72] Where as a result of these processes there were gaps in the roster, a team
leader or Mr Cate would fill them if possible by using permanent staff; if this was
not possible casual staff would be contacted and asked if they could be available. If
agreement was reached that a casual employee would work a particular shift, the
name of that person would be recorded in the roster by hand.
[73] There was a significant divergence between the parties as to how long in
advance a casual employee would be booked in this way. Mr Cate said that this
usually occurred on a week by week basis, although the team leader of Rangatahi
would book shifts for casual employees “a few weeks” in advance when there was a
known gap, for example, where it was known that a permanent employee would be
away on leave.
[74] Mr Cate said that casual employees such as Mr Savage were also called at
short notice to see if they would be available to work overtime even if already
booked for a particular shift. He said that Mr Savage was regularly offered work in
this way and he would often say that he was not available, or did not feel like
working.
[75] For his part, Mr Savage initially said in evidence that 90 percent of his shifts
were pre-booked. When giving his oral evidence, he said this occurred for
98 per cent of his shifts.
[76] Mr Savage said he worked for three particular wards – Ward 27, Purehurehu
and Rangatahi. He would often communicate directly with staff on particular
wards, which would result in a booking. He said that his work roster was always
pre-booked, sometimes one week ahead, but often up to two months in advance.
Then in his oral evidence he stated that his shifts were pre-booked “many months” in
advance, although he qualified that by stating that sometimes this would be a week
prior, but most of the time it would be at least three weeks in advance.
[77] I do not accept Mr Savage’s evidence that booking occurred “many months”
prior to a particular shift or shifts. Synthesising the evidence, I am satisfied that
shifts were regularly booked some weeks prior to the work assignment, often three
weeks in advance. However, it is not possible to be more accurate on this topic,
because the evidence of the parties was inevitably general in nature relating as it did
to a practice which spanned some three years; and no documents were produced
which might have shed greater light on the issue.
[78] In his submissions, Mr O’Sullivan placed particular weight on the terms of
the letter of 27 May 2014, because it referred to the process of allocating work by
roster in advance. He submitted that for the period during which the letter was
written, the roster had obviously been established more than one week in advance;
this was because the letter had been written on 27 May, yet it showed that Mr Savage
had been rostered on for several shifts up to 7 June.
[79] In evidence, it was also suggested to Mr Cate that some significance should
be taken from the fact that in the letter the Board said it would pay Mr Savage for the
balance of the days for which he had been rostered, although he was not required to
work on those days. Mr Cate said that although he was not involved in sending the
letter because he was away, this appeared to have been an act of good faith given that
an unusual and difficult situation had arisen. I accept that atypical circumstances
were dealt with in the letter.
[80] In my view, the use of a roster to establish whether there was a gap that
needed to be filled, and then to record agreements reached with Mr Savage from
time to time does not point to a conclusion that there was ongoing employment. In
the first instance, the roster included the names of permanent staff; the document was
then used to establish whether there were any gaps which other permanent staff
could fill, or casual employees if they were willing to assist. I accept Mr Cate’s
evidence that Mr Savage was not engaged in a formal “patterned roster of work”.
Although it was foreseeable that Mr Savage would be asked to work, it was not
guaranteed and he was not obliged to accept any request to work.
[81] Rather than Mr Savage’s name being generated by the rosters which were
produced for each unit automatically, his name was kept on a running sheet which
Mr Cate maintained of casual staff who could be available, an arrangement which
was described in the job description given to Mr Savage at the outset.
[82] Mr Savage emphasised that because he was pre-booked, he would not decline
work, although he reluctantly acknowledged that on rare occasions he would do so if
he had family commitments, sometimes conferring first with his wife, or if he was
already scheduled for shifts which would provide the level of remuneration he
needed.
[83] On this issue, the important point is that Mr Savage did not have an
obligation to accept the work which was offered. The relevant clause in the MECA
emphasised that a casual employee had to be asked to work as and when required.
This was the practice. Mr Cate said he spoke to Mr Savage each week to ask him to
work; this was to enable Mr Savage to decide whether to accept or decline a shift.
Mr Cate said that Mr Savage often adopted a humorous catch-phrase in reply which
was “I can’t be arsed”, particularly at times when it did not suit him to work. In fact
he could be asked, but he was entitled to refuse.
[84] Having regard to these contextual factors, I do not regard the handwritten
endorsement of Mr Savage’s name on a roster which had been generated previously
as being a factor which should lead to a conclusion that he was a permanent
employee rather than a casual employee; indeed, the irregular and unpredictable
practice which was adopted between the parties, evidences the flexible arrangements
which the parties had agreed to in the first instance.
Hours of work and days of work
[85] For Mr Savage it was submitted that although the number of hours worked
each week fluctuated, there was an average of nearly 30 hours in each week over a
three-year period. That meant the relationship was not, in reality, a casual one.
There was “ongoing casual work”.
[86] For the Board, it was submitted that Mr Savage worked a wide range of hours
and only on days that were convenient to him which was not the position for a
permanent employee.
[87] The following table reflects the range of hours worked over 170 weeks:17
Hours on duty (including overtime)
Number of weeks
0
> 0 and ≥20
> 20 and ≥30
> 30 and ≥40
> 40 and ≥50
> 50
6
26
49
54
28
7
TOTAL WEEKS 170
[88] The six weeks for which no work was undertaken were periods when
Mr Savage chose to have a break, which he could of course take whenever he
wished.
17
That is, from 21 February 2011 to 25 May 2014.
[89] What can be taken from this evidence is that Mr Savage did not work a
regular number of hours in each week; whether he worked and if so the extent to
which he worked depended on the particular needs of the Board in any work period,
and then whether Mr Savage accepted a particular offer to work, according to his
personal circumstances.
[90] In spite of the fact that Mr Savage said in evidence that he worked “set hours
and set days of work regularly”, the reality was otherwise. The hours worked were
erratic.
[91] A table was produced as to the days of the week which were worked in the
same period, as follows:
Day of week
Days worked
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
31
48
48
65
94
141
142
TOTAL DAYS 569
[92] The majority of days worked were according to Mr Savage’s preferences, and
when he agreed to work if asked regularly on Fridays to Sundays.
[93] These preferences are to be contrasted with the contractual requirements for
permanent employees, who would be rostered on a rotating basis. Mr Cate explained
that permanent employees have a pattern to the shifts they work, since their shifts are
prearranged and agreed to in advance; the days they worked were accordingly more
evenly distributed. Permanent staff were also required to work in a specific unit or
team. By contrast, Mr Savage had a choice on all these issues.
[94] Analysed from this perspective, these factors point towards casual
employment status, as was agreed at the outset.
Whether there was a regular pattern of work
[95] For Mr Savage it was submitted that the evidence of the parties indicated that
over the three-year period there was clearly a regular and predictable pattern of
work. Mr Savage was allocated work whenever he wanted it.
[96] The Board emphasised that having regard to the manner in which work was
offered to Mr Savage, it could not be said that he became a permanent employee,
since when and where he would work was unpredictable and he had the right to
refuse to work on any particular shift.
[97] I accept the submission made for the Board. Having regard to the analysis of
hours worked and days of the week worked as above, any “pattern” was erratic and
unpredictable. Whilst there was a reasonable certainty that work would be available
for casual staff to the extent that a pool of such employees was maintained, it was
always open to Mr Savage to decline any particular offer, and when he wished to he
did. This was as originally agreed, and this aspect of his employment did not alter.
It was a key point of difference between a casual employee and a permanent one.
Was there a mutual expectation of continuity of employment?
[98] For Mr Savage, emphasis was placed on four particular factors which it was
submitted created a mutual expectation of continuity of employment. The first was
the ongoing rostering of work to Mr Savage in advance. The second was the
reference in the letter of offer to the fact that Mr Savage’s role/position description
would be reviewed on a regular basis and that mutually agreed changes would be
made as appropriate to keep it up-to-date. The third was the statement in the same
letter that if Mr Savage was engaged on a frequent basis, certain entitlements for sick
and bereavement leave would arise under the Holidays Act 2003. The final factor
related to the obligation to comply with the Board’s Code of Conduct at all times.
[99] All these matters have been touched on already, but it is appropriate to repeat
my earlier conclusions because this particular factor is the strongest point advanced
for Mr Savage.
[100] In the circumstances of this case, I do not consider that the fact Mr Savage
was asked regularly if he wished to work on particular occasions, and his acceptance
of those requests, leads to a conclusion that the nature of the relationship changed. I
have already found that on each such occasion Mr Savage had a choice whether to
accept or not.
[101] This was not a situation where an employee wished to advance his career by
moving from casual to permanent status. Rather, converse circumstances gave rise
to the employment agreement. Furthermore, once he agreed to be a casual
employee, Mr Savage did not request that his casual employment agreement be
brought to an end so that he could become a permanent employee again, a process
which he had initiated previously. There is no evidence that a continuation of the
casual agreement was to preclude Mr Savage having security of employment.
[102] Next, I refer to the intention to review the role/position description on a
regular basis. The evidence is this did not happen. But it is not a significant factor
for present purposes, since the intention was only to review the position description;
there was no commitment to review Mr Savage’s status. In any event, as experience
showed, Mr Savage could apply to be a permanent employee; he did not do so.
[103] Turning to the acknowledgment in the letter of offer that entitlements would
arise under the Holidays Act 2003 for sick and bereavement leave, I do not consider
that this reference assists on the question of status. As far as the letter itself is
concerned, it was confirmed that those entitlements would arise if Mr Savage was
“engaged on a frequent basis”. The letter did not state that in such an event, the
continuation of the agreement itself would need to be reviewed; nor do the criteria of
s 63 of that Act, which I discussed earlier, turn on whether the employee is employed
on a casual or permanent basis.
[104] What is of greater significance in my view is the fact that when setting up a
casual agreement, the parties specifically foresaw the possibility that Mr Savage
could be engaged frequently as a casual employee.
[105] The final factor for the purposes of this submission is the reference in the
same letter to the Code of Conduct. I have already discussed this factor, and do not
regard it as determinative.
[106] In short, whilst there was a reasonable expectation that work would be
offered to Mr Savage and that he would have the choice of agreeing to undertake it,
he was not bound to do so; he was not rostered on a regular and rotating basis as
would be the case for a permanent employee.
The provision of notice before being absent or on leave
[107] Mr O’Sullivan submitted that Mr Savage believed he was required to advise
his employer that he was going to be absent or on leave, and that he always did this.
He relied on the fact that the letter of offer specifically referred to the Board’s
policies and requirements for managing and applying for all types of leave. This was
accordingly a strong factor pointing to permanent status.
[108] I have already analysed the various policies.18
The policy relating to annual
holidays specifically provided that casual employees would be paid on a “pay as you
go basis”; and as I have already found, if Mr Savage wanted a break, he could
decline to work when asked. He was not required to give a reason, even if he did as
a matter of courtesy. The reference in the policy to leave applications must be
regarded as a provision relating to a permanent employee.
[109] The policy as to bereavement leave also referred to the position of casual
employees; reference was made to the provisions of the Holidays Act 2003, and any
notice for the taking of bereavement leave (where it had previously been agreed that
work would be undertaken) was on the basis that the applicant for leave was a
casual. The domestic leave policy did not incorporate the same distinction, although
it would operate in the same fashion; that is where a casual employee had a sick
18
At [38] – [42].
leave entitlement under the provisions of the Holidays Act 2003, agreed to work on a
particular shift or shifts but subsequently became ill, commonsense would suggest
that it was appropriate for that employee to inform the employer of the changed
circumstances.
[110] Arrangements of this type do not in my view mean that Mr Savage should be
regarded as a permanent employee.
Were there consistent start and finish times?
[111] Mr O’Sullivan submitted that shifts started at pre-determined times and
concluded at pre-determined times, and that this too was a factor suggesting
permanency.
[112] In fact, Mr Savage’s evidence was that shifts were not of a fixed duration. He
said that as a RN he was not permitted to finish a shift until his workplace was
declared safe, and he was covered by another staff member. He said that at times he
had been required to stay significantly beyond the end of a shift in order to meet
these criteria.
[113] Mr Cate said that Mr Savage would sometimes work a 7.00 am to 1.30 pm
shift, which was not a standard shift because permanent staff who started at 7.00 am
were required to finish at 4.05 pm, or in the instance of a particular ward, 3.30 pm.
He said that additionally, Mr Savage would sometimes finish a 2.30 pm shift at
10.30 pm, whereas a permanent staff would finish at 11.05 pm. Although each shift
had a handover period where there was an overlap of staff finishing a shift and
beginning a shift, some team leaders did not wish to have casual staff such as
Mr Savage work to the end of a shift if they were not needed during the overlap. He
said this was to save money. That is, unlike a permanent employee who worked and
was paid to work on a rostered shift basis, a casual employee worked as required,
and was paid accordingly.
[114] On the totality of the evidence on this point, I find that there was a sufficient
distinction between start and finish times for casual workers such as Mr Savage on
the one hand, and permanent employees on the other, that this was not a factor giving
rise to permanent status.
Conclusion as to position as at 27 May 2014
[115] The effect of my consideration of the foregoing factors is that none of the
indicia which the Court has been required to consider lead to a conclusion that in
reality the relationship was one of permanent employment. This was not a situation
where in practice there were ongoing mutual obligations between periods of work
which lead to a conclusion that the relationship changed over time. I find that the
casual status which was requested and agreed at the outset, continued to apply until
27 May 2014.
Conclusion
[116] Having found that an arrangement of casual employment was entered into at
the outset, and not altered subsequently, the challenge must fail. I agree with the
conclusion reached by the Authority in its determination.
[117] I reserve costs. The Board is entitled to costs unless there are factors which
fall for consideration of which the Court is unaware. The parties should attempt to
agree this issue directly. If that does not prove possible, the Board may file and
serve a submission as to costs within 21 days of the date of this judgment; and
Mr Savage may file and serve a response within 21 days thereafter.
B A Corkill
Judge
Judgment signed on 30 June 2016 at 12.15 pm