The Employment Relations Authority has rejected a claim of unjustified dismissal, after deciding that the employee was employed on a casual basis. This meant that the employer was not obligated to provide the employee with work.

The employee worked for the employer for ten years as a casual employee. She worked for approximately 40 hours a week over the course of the last few years of her employment.

In response to the Covid-19 pandemic, the employer implemented a mask wearing policy which required that employees wear masks whilst working. It was possible to attain an exemption from this policy, but this would restrict the work that the employee could do to non-client work only.

The employee was granted a government mask exemption, and thereafter refused to wear a mask at work, claiming that she was exempt. Her employer informed her that whilst they did not dispute the fact that her government mask exemption was valid, she would still be required to seek a workplace mask exemption from her employer.

The employee refused to accept this, at which point the employer stopped offering the employee shifts, as she could not complete the client-facing work that she would normally do.

The employee brought a claim of unjustified dismissal to the Authority, and requested reinstatement into her role on the basis that she was in fact a permanent employee.

The Authority first had to decide whether the employee was employed on a casual or permanent basis. It was found that because there was no obligation on the employee to accept work, she was undoubtedly a casual employee.

Furthermore, the employer made it clear that should the employee change her mind and decide to start wearing a mask, or apply for a workplace mask exemption, she would be offered work in the same manner that she was prior to her refusal to follow the company policy.

Given that the employer was not required to offer the employee shifts but stated that she would be welcomed back if she complied with company policy, the Authority rejected the employee’s claim of unjustified dismissal, as they concluded that no dismissal actually occurred.

If there is confusion around an employee’s obligations to comply with company policy, it pays to seek advice from a professional with experience in the area.

 

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Sarah Jamieson & Matthew Binnie

Litigation team
Wellington