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 obligations.
Employee fails to re-apply for work visa in timely manner – can you terminate?
We assisted an employer who had reminded an employee that his work visa would expire in six months and that the expiry would happen in the midst of an extremely busy period when the employer would have very little time to help with the visa application. The employer asked the employee to begin preparing the visa application well in advance of the anticipated busy period but despite this request, the employee took little to no steps to apply for a further work visa until just before it expired. This was, of course, right in the middle of the anticipated busy period.
What was the employer to do?
The employer was tempted to refuse to assist the employee with the visa and instead terminate the employment. On the face of it this seemed a valid option because an employer is prohibited from employing someone without a work visa. However, despite the employee's tardiness, the employer was bound by the obligation to act in good faith. As a result, a refusal to assist with the work visa application process could have given rise to a grievance and an appearance in the Employment Relations Authority which certainly would not be welcome. Another issue from a practical standpoint was the employer's uncertainty of finding another employee at such short notice to fill the position. As a result, the employer assisted the employee with his visa application; however, the employer did exercise the option of commencing a disciplinary process to address the employee's tardiness to prevent it from happening again.
The more practical approach would have been for the employer to have formally required the employee to take steps to apply for a new visa and the employer should have also set a date that was appropriate for both parties which would have made the employer's expectations clear to the employee. This also would have put the employer in a stronger position to proceed with terminating the employment if the employee had still failed to act. As an added contingency the employer would have sufficient notice, not to mention time, to recruit a replacement if need be.
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.
