FAQ: Can My Boss Just Sack Me If I Am A Casual Employee?

Many employees assume that being a casual worker means their employer can end their employment whenever they want, for any reason. Employers often assume the same thing.  The reality is more complicated.

While casual employment can provide more flexibility than permanent employment, employers still have legal obligations. Whether an employer can stop offering you shifts, remove you from the roster, or end your employment depends on the nature of your employment relationship and the reason for the decision.  If you are working casually and wondering whether your employer can simply stop giving you work, here's what you need to know.

What Is a Casual Employee?

A casual employee is generally someone who:

• Has no guaranteed hours of work.

• Can accept or decline shifts.

• Is engaged on a shift-by-shift basis.

• Does not have an ongoing expectation of regular work.

In a genuine casual employment relationship, each shift is effectively a separate period of employment.  

When Does a Casual Employee Stop Being Casual?

This is one of the most common misunderstandings in employment law.  A worker can start as a casual employee but later become permanent through the way the employment relationship operates.  Some warning signs include:

• Working the same roster every week, 

• Having little ability to decline shifts, 

• Being expected to attend work regularly, 

• Having an ongoing expectation of work, or

• Working regular hours over many months or years.  

The more regular and predictable the arrangement becomes, the harder it may be for an employer to argue the worker remains genuinely casual.  If a dispute arises the Employment Relations Authority and Employment Court will look at what happens in practice, not just what the contract says.

If you have been working regular hours for a long period of time and both you and your employer expect that work will continue, you may have become a permanent employee regardless of what your agreement says and may have rights similar to a permanent employee.

In those circumstances, stopping shifts altogether may be considered a dismissal.  If that dismissal occurs without a fair process, the employee may have grounds to raise a personal grievance.

Click here for more information on whether your casual contract has become something more.

Can My Employer Just Stop Offering Me Shifts?

If you are a genuine casual employee, your employer generally does not have to offer you future shifts.  Likewise, you are usually not required to accept shifts that are offered.

However, employers cannot use this flexibility to avoid their legal obligations or disguise a dismissal.  The reason why shifts stop being offered can become very important.

What If My Employer Is Unhappy With My Performance?

Many employers think they can simply stop offering shifts to a casual worker if they are not performing well.  That can be risky.  If an employer has concerns about a worker's performance, they should usually raise those concerns with the employee and provide an opportunity for improvement.  Even for casual employees, decisions based on performance should be made fairly and in good faith.  Employers should not use rostering decisions as a shortcut to avoid dealing with performance issues properly.

What If I Did Something Wrong?

If an employee commits misconduct or serious misconduct, employers are still generally expected to follow a fair process before taking action.  For example, if an employee was rude to a customer, breached a workplace policy, failed to follow instructions, or engaged in inappropriate behaviour, the employer should usually investigate the allegations before deciding what action to take.  Simply stopping shifts without explanation may create legal risks, particularly if the employee was working regular and ongoing hours.

A fair employer should explain the concerns, investigate the issue, give the employee an opportunity to respond, and consider the employee's explanation before making a decision.  These obligations do not disappear simply because someone is described as a casual employee.

What If There Are Not Enough Shifts Available?

This is one of the situations where employers may have greater flexibility.  If business genuinely slows down and there are fewer shifts available, an employer may reduce the number of shifts offered to casual employees.  This is often one of the reasons businesses engage casual workers in the first place.  However, employers should be careful to ensure the reduction is genuine.

If shifts are being removed from one worker but continue to be offered to other employees performing the same work, questions may arise about the real reason behind the decision.  Employers should also avoid making decisions based on unlawful factors such as discrimination, retaliation, or personal grievances.

What If My Employer Just Doesn't Want Me There Anymore?

This is where many disputes arise.  If an employer simply decides they no longer want someone working for them, they cannot automatically avoid employment law obligations by removing them from the roster.  

What Should I Do If My Shifts Suddenly Stop?

If your employer suddenly stops offering shifts, consider:

• How long you have worked there,

• Whether your hours were regular,

• Whether other employees are still receiving shifts,

• Whether you were given a reason, and

• Whether any concerns had been raised about your performance or conduct.

It is important not to simply assume that you have no rights because your agreement says casual.  The reality of your working relationship may be more important than the wording of your contract.

If you believe you have effectively been dismissed, it is worth obtaining advice promptly. Time limits apply to employment disputes, and delaying can make it harder to protect your position.

Being employed on a casual contract does not automatically mean your employer can fire you whenever they choose.  A genuine casual employee may stop receiving shift offers when work is unavailable or the employment relationship naturally comes to an end. However, employers cannot use casual employment as a way to avoid fair treatment or proper employment processes.

If your shifts have suddenly stopped, or your employer has removed you from the roster without explanation, it may be worth looking more closely at whether you were truly a casual employee and whether your rights have been breached.  Get in touch today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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