Temp Found to be Unjustifiably Dismissed

The Employment Relations Authority has found that recruitment consultancy company Kelly Services (NZ) Ltd (Kelly Services) unjustifiably dismissed Mr Matthew Boyce, when their client, Coca Cola Amatil (NZ) Ltd (Coca Cola), decided they no longer wanted Mr Boyce to carry out an assignment with them.

Mr Boyce had recently left school and wanted temporary employment for a period of several months before starting university in the USA.  He answered an advertisement on Seek which sought applications for warehouse workers, called pick packers.  The advertisement stated the role was 12-hours per day, 5 days per week.

Mr Boyce was offered the role and told he would be employed by Kelly Services under their employment terms and conditions but would carry out the assignment with Coca Cola.  The employment agreement stated that the working week was Monday to Friday, 12 hours a day, and that the employment was a long-term assignment.  In the employment agreement a long-term assignment was one defined as being longer than 4 weeks and Mr Boyce said he was advised that this assignment would be for 3 – 4 months. 

The employment agreement was a generic document and the specific details relating to Mr Boyce and the specific assignment, such as the client’s address, personal protective equipment requirements, weekly work hours (49 hours) and pay rate ($17.31 per hour) were detailed on a separate handwritten note.

Mr Boyce attended an induction on 27 February 2015 and began the assignment.  Then, on 3 March 2015, he was asked by Coca Cola if he could work on Saturdays going forward.  He said he wasn’t able to work on Saturdays due to baseball commitments, which he had already advised Kelly Services.  Mr Boyce was told that training would be provided on Saturdays, without an explanation of what the training would be for, and Mr Boyce noted that he felt the role was straightforward.  The following day, at 7:30am on 4 March 2015, Mr Boyce was told by a Manager at Coca Cola that his employment would be terminated immediately as he was not able to work on Saturdays.  He was allowed to continue working until 9am that morning and then had to leave the premises.

Kelly Services offered Mr Boyce two other assignments; a half day water blasting assignment on the same day which he declined due to having started work very early that morning, and the other was relocating rental cars which he was unable to do due to not holding the necessary driver’s licence.  Later assignments were also offered but these were after Mr Boyce had travelled overseas, so he had not replied.

The parties did not agree on the nature of the employment arrangement.  Mr Boyce asserted that he was employed for a fixed term while Kelly Services said that the employment was not fixed term but instead casual.  Ultimately, applying the relevant tests, the authority found that the relationship was one of casual employment.

Noting that the employment relationship had not ended by mutual agreement, the Authority also noted it must have ended by way of frustration, resignation, abandonment or dismissal.  The Authority highlighted that a labour hire company owes all the same duties under the Act to their employees as other employers.

Mr Boyce had not resigned and the employment agreement did not contain an abandonment provision.  There had not been frustration of contract in these circumstances; being a tripartite arrangement, as determined by the Employment Court in Workforce Developments Limited v Hill [2014].

The Authority determined that Coca Cola could only terminate the assignment, not Mr Boyce’s employment, as they were not the employer. 

Mr Boyce’s employment agreement with Kelly Services expressly stated that employment will terminate when an assignment ends.  However, the Authority found, on the balance of probabilities, that Kelly Services had unjustifiably dismissed Mr Boyce because they failed to take steps to explore ways that Mr Boyce’s assignment with Coca Cola might have continued. 

The Authority noted that if Kelly Services had made genuine efforts to investigate their client’s requirements and had acted reasonably in relation to their obligations to Mr Boyce, even if Coca Cola still then didn’t change their requirements and offer ongoing work to Mr Boyce, the dismissal would not have been found to be unjustified.

If you are unsure about the requirements for ending employment, whether the arrangement is casual, fixed term or permanent, please do not hesitate to contact one of our Consultants who can discuss with you the correct process to follow.