In the current labour market many industries find it difficult
(or impossible) to recruit suitably qualified and experienced local
staff. Therefore, quite understandably, they recruit from outside
of New Zealand. In most cases with the assistance of a good
licensed immigration advisor or a specialist lawyer, it is fairly
simple to support a new or existing employee in obtaining the
required work visa.
Unfortunately there can often be employment relationship issues
with work visa employees due to the temporary nature of their
permission to work. Also, what is expected under employment law
often seems to directly contradict employers' immigration
Employee's work visa is declined – can you
terminate the employment?
At Cavell Leitch we have assisted a number of employers who have
learned, after the expiry of an employee's work visa, that the
new work visa application has been declined. This means that the
employee has to immediately stop working and it leaves the employer
with a last-minute staffing issue.
As soon as each employer became aware that the employee was
unable to lawfully work, immigration law required the employer to
cease the employment. If the employee had continued working, the
employer could have been liable for a $50,000 fine. Also, the
employer may have also become ineligible to support other employees
with obtaining work visas. Losing the ability to sponsor migrant
workers can be a significant problem in the current labour market
However, where an employer becomes aware that an employee is
unable to lawfully work, employment law still requires the employer
to act in good faith. This meant that each employer had to be
careful and could not immediately terminate the employment, despite
the fact it was unlawful to continue the employment under
immigration law. Therefore, the practical solution was to
immediately raise concerns about the expired visa, explaining to
the employee that it may be unlawful for him or her to continue
working and provide an opportunity to respond or provide
alternative evidence of lawful ability to work.
Unfortunately, in one case the employee was unable to provide
such evidence. Therefore, as this was provided for in the
employment agreement, the employer suspended the employee for an
agreed time period to give the employee the opportunity to redress
the situation and obtain an appropriate visa. Unfortunately,
despite these opportunities, this particular employee was unable to
obtain documentation to prove he could lawfully work and the
employer had no choice but to terminate the employment.
To avoid finding your business in the above situation we
recommend taking steps to arrange sound immigration advice and
assistance for your employees well before their visas are due to
expire. This should, depending on the calibre of the advisor or
lawyer, mean that you are given plenty of warning if circumstances
indicate that a work visa is likely to be declined. This will also
enable you to stay informed and put in place staffing contingency
Even if as an employer, you arrange for an employee to have
access to an experienced immigration lawyer, there are employees
who decide to do it alone. Unfortunately, this can result in you
being uninformed as to the progress of the visa. Worse still, if
the work visa application is declined, the employee could keep this
from you and continue working in the hope that you will not find
out. To stay well informed as to your employees' visa status it
is important that you track employees' visa expiry dates and
require proof of the employee's continued lawful ability to
work by each expiry date. That way, there will be no opportunity
for an employee to continue working once a visa has been declined.
It also means that every work visa employee clearly understands the
expectation to provide you with evidence of a new visa. A reputable
immigration lawyer will be able to assist you with establishing and
operating a system to monitor and manage employees' visa
On occasion, there can appear to be a direct conflict between an
employer's duties under immigration and under employment law
which can seem insurmountable. However, with planning and good
legal advice these conflicts can often be avoided or resolved in a
practical and economic way. If you find your business caught
between immigration requirements and employment law, it may save
you and your employees significant inconvenience if you seek advice
from experienced and reputable advisors.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
October 12th, 2016 - Immigration authorities conducted the 21st round of invitations under Express Entry in 2016 and 44th overall, inviting 1518 applicants for permanent residence with a lowest CRS score of 484.
October 19th, 2016 - Immigration authorities conducted the 22nd round of invitations under Express Entry in 2016 and 45th overall, inviting 1804 applicants for permanent residence, the largest number ever. The lowest CRS score was 475, a decline from the previous draw.
September 21st, 2016 - Immigration authorities conducted the 20th round of invitations under Express Entry in 2016 and 43rd overall, inviting 1288 applicants for permanent residence with a lowest CRS score of 483.
The Skilled Migrant Category (SMC)is the category that most people use to apply for residence.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).