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 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.
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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.
Canada received more than 320,000 immigrants in the last 12 months, approaching levels not seen since the early 20th century. The per capital immigration rate at .88%, is consistent with previous Liberal government policies.
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.
September 7th, 2016 - Immigration authorities conducted the 19th round of invitations under Express Entry this year and 42nd overall, inviting 1000 applicants for permanent residence with a CRS score of 491, a decrease from the previous draw.
President Obama had proposed immigration benefits with a view to retain talent and promote innovation and business.
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