In the recent decision of Turner v Talley's Group Limited, the Employment Court held that "seasonal" workers are not a separate category of workers and the requirements for fixed term employment under section 66 of the Employment Relations Act 2000 (Act) must be met.
This case also serves as a timely and important reminder to check whether a personal grievance has been raised within 90 days, and to make sure you do not inadvertently consent to a grievance being raised out of time.
Mrs Turner was employed by Talley's as a fish processor at the Motueka plant from 2001 until 14 July 2011. With the exception of a few months' unpaid leave in 2009, Mrs Turner worked 40 hours per week at the plant continuously. The nature of her processing work varied depending on seasonal requirements (but was the same annually).
Every time Mrs Turner moved to a different type of fish processing work, Talley's provided her with a new individual employment agreement. These agreements all provided for work on a full time, 40 hour per week basis and only the type of work to be undertaken varied.
In mid-2011 Talley's invited its staff to apply for work during the hoki fish processing season. Mrs Turner had done this work over the past 10 years and expected to do so again. However, she was not selected and her employment ceased on 14 July 2011.
What was Mrs Turner's employment status?
Talley's argued that Mrs Turner was justifiably dismissed as she was a "seasonal" worker and was no longer required given the "season" she was last employed for had come to an end. Talley's also insisted that Mrs Turner's employment agreements were "seasonal" agreements, not fixed term.
The Chief Judge disagreed and held that "seasonal" agreements in the fish processing industry fall squarely within the definition of a fixed term agreement under the Act and must therefore be governed by section 66. The Court held Talley's had not complied with section 66 as:
Talley's did not have genuine and reasonable grounds for requiring Mrs Turner's employment to be for a series of fixed terms because, while the fish products to be processed were seasonal, Mrs Turner worked continuously and was moved from product to product over the course of each year; and
Mrs Turner's employment agreements did not state the way in which her employment under each agreement was to end, or the reasons for the employment ending in that way.
The effect of this non-compliance was that Mrs Turner was deemed to be a permanent employee. Based on this, the Court held it was not open for Talley's to end Mrs Turner's employment by way of an agreed expiry, and she was unjustifiably dismissed.
Was Mrs Turner's grievance raised within 90 days?
Interestingly, while the Court held that Mrs Turner had not raised her personal grievance in relation to unjustifiable dismissal within 90 days from the date of her dismissal, the Court found that Talley's had formally responded to Mrs Turner's personal grievance in detail and did not claim it was raised out of time. Therefore Talley's was held to have impliedly consented to the late raising of the grievance.
This case demonstrates that it does not matter what an employee is labelled: if you want to employ someone for a specified period of time or to do seasonal work, the requirements of section 66 must be met, namely, an employer must:
have genuine reasons based on reasonable grounds for ending an employee's employment at the end of a specified date or event; and
advise the employee in writing how and why their employment will end on the specified date.
It also highlights the importance of checking whether a grievance has been raised within 90 days before responding to it. If a grievance has been raised out of time, it is critical to inform the employee of this to avoid impliedly consenting to the grievance being raised out of time.