When a Tauranga trucking company let an employee go during the COVID-19 lockdown, with the belief that he was simply a casual employee, they were in for a short, sharp, shock. The Employment Relations Authority (ERA) issued a poignant reminder affecting all New Zealand employers: people who rely on you for consistent work are often actually permanent staff – not casual – and if you get it wrong, you’re likely to incur ERA court costs, financial penalties, plus damage to your reputation if the case lands in the news.

The case in question was Hoebergen v Amline Freighters Limited (“AFL”), and it was a reminder of the need for employers to consult HR employment expertise regarding their employees’ work status – especially when there’s a question of termination, dismissal and employment grievance.

It began when truck driver Steve Hoebergen was employed by AFL as a truck driver from November 2017 until 15 April 2020. It was AFL’s view that given the nature of Hoebergen’s signed employment agreement, he was always a casual employee (despite being reliant on AFL for most of his income and work). As the lockdown harmed business, AFL advised Hoebergen that his services were no longer needed due to being employed on an “as required” basis.

On March 19 2020, Hoebergen was sent home sick from work after he developed cold-like symptoms, which might have placed the employee at risk of COVID-19. Following government advice he received through the COVID-19 helpline, Hoebergen notified AFL’s operations manager that he would be isolating for the next few days. Hoebergen was notified by the company director via text message that if he was not at work on Monday, 23 March 2020, he would be dismissed; he didn’t. Consequently, AFL didn’t pay Hoebergen on Tuesday as expected and later in the week, on 31 March 2020, he received his final holiday pay.

On 15 April 2020, Hoebergen was formally advised by AFL that no further work would be offered to him under the terms of his casual employment agreement because there was no casual work available.

The employee complained to the ERA – which found his ‘casual’ employment was actually permanent.

It was the ERA’s view that Hoebergen was a permanent employee because:

  • The work performed by him was fundamental to the operation of the business; and
  • There was an expectation of work and work was foreseeable.

While it was accepted the employee commenced with AFL on a casual and intermittent basis, this initial arrangement changed into a permanent arrangement during his employment.

Based on Hoebergen’s permanent and ongoing employment, the ERA held that he was entitled to have his employer put its concerns to him and to be provided with a fair opportunity to respond and have any response fairly considered. Moreover, the concerns should be substantive and well-founded. On this occasion, AFL’s failure to fairly put these concerns to Hoebergen meant that they were unable to discharge their obligations under section 103A and s4 of the Employment Relations Act 2000.

Thus, it was found that Hoebergen had been unjustifiably dismissed.

Considering termination of employment? Check with enableHR that you’re doing it lawfully

Breaking up is hard to do, so enableHR has made it easier.

When termination of employment happens, smart companies leave the door open for good employees to return – and smarter companies measure twice before cutting ties. Few things are more important than your hard-won reputation, so use enableHR’s termination of employment, dismissal and redundancy policies and procedures to underscore interactions with employees. Whether the decision to part ways is theirs or yours, it’s important you follow a fair and compliant process to reduce the risk to your business.

enableHR also has the wisdom of employment law specialists to guide complicated termination, so don’t hesitate to contact us for guidance.