Hi
we have staff on a zero hours/casual contracts, no obligation to offer nor accept work by either side. One of these is moving to a permanent role with us. Do we give them continuity of service from their casual start date? As a casual worker, they were offered & accepted hours most weeks with few breaks. Our terms of engagement are silent on this.
Thanks
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If the employee is moving from a casual contract to a permanent one and there has not been any break in service whatsoever, then I believe that continuity of employment would apply.
My understanding would be casual worker - no, employee - yes. A casual worker doesn't have continuity of service whereas an employee does.
So are they a worker or an employee. Here my understanding is that the key test is 'mutuality of obligation' and as you say they can turn down assignments I would say they are a weorker and therefore have no continuity of employment.
The distinction between workers and employees is somewhat illusory. What matters is continuity of service and this will all be fact dependent.The key fact will be the reality of the relationship, not what the contract says or the gaps inbetween
The reality is they are not obliged to accept any work nor are we to offer. In practice however, over the past 5 plus months, there has rarely been a week where work has not been offered & it has always been accepted.
Is contiunuity the safest bet?
I would agree with Peter and this illustrates why organisations need to monitor the use of casual workers as the 'casual' arrangement can become regular and the worker become an employee on non guaranteed hours arrangements