Fixed term appointments

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The Board of Trustees should have a policy and procedures in place which determines whether or not a vacancy will be filled on a permanent or fixed term basis.

Before determining that the vacancy will be filled on a fixed term basis the Board must be aware of the legal requirements outlined in Section 66 (1) and (2) of the Employment Relations Act 2000 which states:

1) An employee and an employer may agree that the employment of the employee will end: 

a) at the close of a specified date or period; or

b) on the occurrence of a specified event; or

c) at the conclusion of a specified project.

2) Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must:

a) have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and

b) advise the employee on when or how his or her employment will end and the reasons for his or her employment ending in that way.

Subsections (3) – (6) of Section 66 contain important information about the mandatory requirements to advise the employee in writing when or how the employment will end and the reasons for the position being fixed term.  Failure to follow these requirements may place the Board at risk of litigation with serious consequences.

What are legally sound reasons for a fixed term employment?

Some examples of a genuine reason on reasonable grounds are:

  • When external funding (not MoE) is provided for a specified period with no guarantee of renewal.
  • To provide teacher aide assistance to a specific child while that child is at the school and continues to attract funding (e.g. ORS) and the date of the child leaving is unknown.  
  • That the Board has a specific project which may have a defined timeline and the work is associated with that project, e.g. installing a computer network.
  • The Board requires sufficient time to follow due process to make a permanent appointment.
  • The Board needs someone to provide temporary cover for a person on leave, e.g. parental leave, study leave.

The NZSTA template letters of offer also provide some examples. If you are unsure whether a reason for a fixed term agreement is based on genuine and reasonable grounds and you would like further advice, please contact our Advisory and Support Centre on 0800 782 435 (option 2).

Is it a Genuine Reason based on Reasonable Grounds though?

To make the matter somewhat more confusing, the genuine reason needs to be based on reasonable grounds as well.  By way of example, in New Zealand Educational Institute (Inc) v Board of Trustees of Red Beach School (ERA Auckland AA437/05, 7 November 2005), teacher aides were employed on fixed term agreements because funding was tied to the number of children enrolled.  The Employment Relations Authority said that while this was a genuine reason, the roll was stable, there were always waiting lists for places, and roll fluctuations could be managed under the agreement’s provisions for variations of hours.  As such, while there was a genuine reason to have fixed term agreements, it was not based on reasonable grounds. The Teacher aides were therefore permanent employees.

It is therefore important for a School to consider if its aim can be achieved in other ways as often outlined in the Collective Employment Agreement(s). Essentially, when assessing on whether to use a Fixed Term agreement, NZSTA advises Schools to contact us to seek an objective point of view to consider all the facts related to the work being undertaken.

What is required of me, when considering offering a fixed term Agreement?

Should you require clarity before offering a fixed term role, our employment advisers can review the offer to assess if it is for genuine reasons based on reasonable grounds.  It may also be prudent to clarify your insurance cover as one insurer has stated that where a personal grievance is raised in relation to a fixed term agreement a school may not be covered, if they have not sought and followed the appropriate legal advice.

Employment funding schemes (ORS)

This remains one of the most difficult areas for schools. Each situation tends to be unique in terms of:

  • The needs of the child (health, security etc.), or
  • The composition of a group of special needs children, or
  • The varying funding provided to schools (e.g. SES changing allocation of funding of individual students).

In some circumstances employees may be employed because their skills, knowledge and experience fit the needs of a specific student.  Boards may also prefer to employ teacher aides in a more generalist capacity.

In some cases, the relevant collective agreement (e.g. the Support Staff in Schools collective agreement) provides the employer with the option to vary the hours of work. Should this option be considered, Boards are advised to contact NZSTA to ensure that the process outlined in the collective agreement is followed e.g. consultation and notice period.  Notice periods vary depending on the funding source.

Fixed term expiry notification letters

When a fixed term agreement is due to expire, it is good practice to remind the employee of this fact.  NZSTA has two letters available below to assist with the notification of:

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