JurisdictionNew Zealand
CourtEmployment Court
JudgeGL Colgan
Judgment Date10 August 2011
Date10 August 2011
Docket NumberCRC 7/11

[2011] NZEmpC 103


CRC 7/11

In the Matter of a Challenge to a Determination of the Employment Relations Authority

Brian Muldoon
Nelson Marlborough District Health Board

Anjela Sharma, counsel for plaintiff

Bruce Corkill QC and Guido Ballara, counsel for defendant

Challenge to an Employment Relations Authority (“ERA”) determination — registered nurse (“RN”) had worked on casual basis for the District Health Board (“DHB”) then as fixed term employee — personal grievance for unjustifiable dismissal — DHB said RN was not dismissed rather RN did not seek re-engagement as was entitled to — employment subject to provisions of collective agreement — ERA concluded RN had been casual employee — whether RN was a permanent employee — whether s66 Employment Relations Act 2000 (fixed term employment) had been complied with.

Held: It was clear from the definition of fixed term employment in the Collective Agreement and in s66 ERAct that a contract of employment was created between the parties for the duration of the fixed term — for the period that N was to be absent from work. It had to be assumed that the statutory prerequisites for fixed term employment under s66 ERAct were initially satisfied by the DHB as it was not argued otherwise.

The DHB did not however satisfy those prerequisites for the continued employment of M after that term expired. M was told that his temporary position would cease and, importantly, that his “position would be reviewed” at that time. That was a new factor that had not been a feature of M's previous periods of employment. The DHB had not complied with s66(1), (2) or (4) ERAct, which meant s66(6) ERAct came into play and the DHB was no longer entitled terminate M's employment in accordance with s66(1) ERAct. From this time, M's employment was not fixed term or casual employment as defined in the Collective Agreement, and so by default it had to be “permanent employment” as defined in the Collective Agreement. Because of this, the DHB could not therefore justify M's dismissal in terms of s103A ERAct (test of justification).

M was entitled to compensation for remuneration loss for 18 months after his employment for the DHB ceased. The figure was made up of what M would have earned in employment with the DHB during that time, less the amount he actually earned in other work during that time period. A modest award of $4,000 for compensation under s123(1)(c)(i) ERAct (compensation for humiliation, loss of dignity, injury to feelings) was appropriate in the circumstances.

Challenge upheld and compensation ordered as above.



Brian Muldoon says he was dismissed unjustifiably from his employment as a nurse with Nelson Marlborough District Health Board in early August 2009. The Board says Mr Muldoon was not dismissed by it; rather, it says he was a casual employee who did not seek re-engagement as such by the Board as he was entitled to do. The Employment Relations Authority, in its determination 1 issued on 28 January 2011, found for the Board and dismissed Mr Muldoon's grievance. He has elected to challenge that determination by hearing de novo.


The relevant facts are largely uncontroversial. Although both parties tendered extensive evidence about related events (such as Mr Muldoon's applications for permanent positions with the Board and the reasons for his non-appointment), they are not material to the Court's determination of the essential

issues in the case. Nor, too, is the extensive evidence led by the Board about whether Mr Muldoon was aware informally and anecdotally about both the employment status of another employee and of the Board's view that he was a casual employee. Mr Muldoon's employment status at pertinent times is a matter of law applied to the relevant facts and is not what either party now says he or it may have believed the position to have been. Frequent repetition by the Board of its view of Mr Muldoon's employment status does not cause that status to change in law or assist the Court to determine it.

Mr Muldoon is a registered nurse and first worked for the Board as a casual employee on 10 March 2008. This was on an “as and when required basis” and his nursing work was undertaken within the Board's Mental Health Admissions Unit (MHAU).

Relevant contractual provisions

Mr Muldoon's employment was subject to the provisions of the then applicable New Zealand (except Auckland Region) District Health Boards/PSA Mental Health & Public Health Nursing Multi-Employer Collective Agreement 01 November 2007 to 31 October 2010.


Clause 3 of the collective agreement defined “Casual employee” as meaning:

… an employee who has no set hours or days of work and who is normally asked to work as and when required. Casual agreements 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.


Clause 3 also defined “Fixed term employee” as follows:

Fixed term employee as defined by Sec. 66 of the Employment Relations Act 2000 means a full time or part time employee who is employed for a specific limited term for a specified project or situation or, for example, to replace an employee on parental leave or long term accident or sickness. There is no expectation of ongoing employment. Fixed-term agreements shall not be used to deny staff security of employment.


Each of the definitions of “Casual employee” and “Fixed term employee” contains a guide to its interpretation and application. Both provide that the relevant employment status “… shall not be used to deny staff security of employment.” 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 staffing 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.


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.


In the case of fixed term employees, to engage nurses (or other affected staff) on a series of temporary or fixed term agreements otherwise than for a specified project or situation, or without complying with s 66 of the Act, would amount to a denial of security of employment to such staff.


In the case of a “Casual employee”, the definition also reserves to the employer the entitlement to employ casuals “where necessary to meet the demands of service delivery.” That focuses on patient or user needs and permits the employer to use casual staff otherwise than on set hours or days of work, and as and when required, to provide for sometimes unforeseen service delivery demands. Although not applicable to this case, which deals with mental health services, I imagine this proviso would be applicable, for example, in the case of an epidemic requiring the engagement of more staff for unforeseen shift needs.


The definition of “Fixed term employee” refers expressly to the situation that applied here, “to replace an employee on … long term accident or sickness.” The collective agreement contemplates that fixed term engagements are the appropriate way to deal with such events rather than bringing in casual employees on a more than occasional basis.


“Full time employee” is defined as meaning “… an employee who works not less than the ordinary or normal working hours set under the hours of work clause in this Agreement.”


“Part time employee” is defined as meaning:

… 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.


Finally, “Permanent employee” is defined as meaning “an employee who is employed for an indefinite term; that is, an employee who is not employed on a temporary or casual basis.” So a permanent employee is defined by a combination of the absence of a definition of the temporal term of employment and is a catch-all in the sense of encompassing employees who are neither temporary nor casual employees.


The collective agreement is otherwise unhelpful in the sense that, while it defines the foregoing terms for its purposes (that included Mr Muldoon's employment), it does not refer again to those of them at issue in this case in a substantive way. That is with one exception at cl 21.0 (“ANNUAL LEAVE”). This provides relevantly (although decision of this case does not turn on this):

21.1 Casual employees shall be paid 8% of gross taxable earnings in lieu of annual leave to be added to the salary paid for each engagement. No other parts of this clause apply to casual staff.

21.2 Employees other than casuals, shall be entitled to 4 weeks...

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