Court rules Talley’s worker not seasonal

Court rules Talley’s worker not seasonal

talleysA Talley’s worker has won an employment case that could have significant implications for other New Zealand workers  and their employers.

Employment Court chief judge Graeme Colgan has ruled that Lynette Turner, who worked for Talley’s for 10 years at its Motueka fish-processing plant, was not a seasonal worker as the company claimed when it stopped employing her in 2011.

Lawyer Anjela Sharma, who represented Turner, said today: “There is a reasonable likelihood there are other employees at Talley’s fish processing plant in Motueka, who have signed similarly worded generic-based contracts of employment to that signed by Mrs Turner.

“If this is the case, it could follow that those employees are not seasonal or fixed-term workers, but are permanent employees at law. One way to establish this would be for those employees to obtain independent legal advice of their employment status, as to the wording of their individual employment contracts with the company.”

Turner has fought a long battle through the Employment Relations Authority and the court since June 2011, when she was not included in a list of employees to work the hoki season, despite working there for 10 years.

She had worked 40-hour weeks, her work rotating through the year between processing mussels, scallops and fish, including hoki, according to the season.

Judge Colgan said in his determination that following what was, in effect, a continuous course of employment of about 10 years, Turner had a reasonable expectation that her employment would continue.

When she sought an explanation of why she was not included in the hoki processing, Talley’s Group personnel manager Greg Cox said there would be fewer jobs at the plant and he had to give priority to the continued employment of a number of “full-time” employees in other departments.

The judge said that unknown to Turner, Cox had an ulterior motive. He believed she was not performing as expected. Rather than confront Turner with his real reason, Cox believed her employment was seasonal and would soon cease, the judge said.

“The easiest way to deal with the situation was simply not to renew her employment after it ceased as he believed it would at the end of the half shell season.

“While that may have been an effective strategy if Turner was engaged under a lawful fixed-term or ‘seasonal’ agreement, it was a flawed one if she was an employee of an indefinite duration as I have now concluded she was,” he said.

Talley’s Group opposed Turner’s challenge.

The company argued that she did not raise the issue within the required 90 days, so the Employment Relations Authority did not have jurisdiction to investigate the alleged grievance.

Authority member Michael Loftus agreed and last August ruled that her application failed and her personal grievance claim was dismissed. However, Turner contested that decision and the case was heard last month.

Talley’s had also argued that she should provide $10,000 security for its costs while the case was decided.

However, in December, Judge Colgan rejected that, saying the company’s application could be seen by Turner as “a strategy to persuade or compel her to abandon the case”.

In his decision now released following the February hearing in Nelson, Judge Colgan granted leave to have Turner’s dismissal grievance dealt with because of exceptional circumstances, saying no blame could be attributed to her for the delays that occurred.

He also noted that at no time until after her employment ceased in 2011 was there any suggestion to Turner of poor performance.

Judge Colgan directed there should be prompt mediation between the parties and, if that did not happen, Sharma should apply to the court for directions about the resumption of the case.

Cox said the company was still considering its response to the decision.

However, Talley’s would continue to employ staff for distinct seasons in the same way that local orchardists employed staff for their apple season.

“Like the apples, when we run out of product, whether it is mussels or hoki, then we run out of work for those seasonal staff and they will unfortunately have to finish. No one would expect an apple orchardist to continue to pay someone beyond the end of their season and the shellfish, fish or vegetable seasons that we operate are no different.

“Lynette’s case is a unique set of circumstances which according to the Employment Authority we had properly dealt with. However, as the Employment Court has now asked us to attend mediation we will do so in the hope that the matter can be resolved.”

– © Fairfax NZ News

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