Covid19 Employment Rights

We are aware that this is a stressful time for all New Zealander's at the moment. Many people's employment continuity is in question. The duties of employers in certain circumstances appear unclear. In this blog we address the circumstance where employees who aren’t Essential Workers and who aren't able to work from home, and have been effectively told there is no more employment available. 

If your employer has said effectively “go home and there is no pay”; there is an absolute expectation by the Government that employers will apply for the Wage Subsidy on behalf of their employees, and pass it on. This is considered part of the duty of good faith imposed on them by the Employment Relations Act. There are some potential caveats to this. The subsidy is $585 for each full-time employee, and, once the employer applies, there is a duty on them to pay you, or to take best endeavors to pay you, 80% of your wage. Employers are absolutely expected to pass on the full subsidy, and to take all necessary steps to keep employees "attached" to them. 

Obviously, there is going to be a shortfall for some employees between $585 and 80% of the wage cost. A claim could be made by the employer that they simply cannot afford this shortfall. They would need to provide evidence of this. Once this claim is made, they can then go down the path of redundancy. Any such redundancies can be examined for fairness and reasonability in the circumstances. 

Your employer should be making any decision with a full consideration of all the possible alternatives; work from home, subsidies, bank loans etc. If you consider that your employer is being too casual about this, is not being supportive or not acting in good faith, then please let them know in writing that you want them to apply for the subsidy and try to negotiate the terms of your continuing employment taking into consideration the amount of the subsidy.

We are available to assist with this negotiation phase and take the case further if need be. Mediation is the next step to resolve the issue. Mediations will still be provided, however on a phone in basis, not face to face.

In terms of being asked to use your Annual Leave. Your employer can require you to take annual leave, if between the two of you, there has been no agreement as to when it should be taken. The employer must give you 14 days’ notice that you are to take your annual leave. However, the duty of good faith still applies here, if they have not made an application for the subsidy and are requiring you to take annual leave due to the Covid-19 lock-down, then this is still seen as a breach of good faith.

Please check your Employment Agreement for a “Force Majeure” clause that allows your employer to end your employment when the business has to shut down entirely due to a natural disaster or, for example: a pandemic. This clause does not allow an employer to send someone away with no proper process to terminate their employment, and especially not if there were alternatives to ending the employment. I.e: the subsidies on offer.

If you have had your employment ended abruptly, please contact WINZ in the first instance for financial support. Then get in touch with us. 09 367 6800. 

In terms of how we can assist you at this time, we are still offering assistance on a No Win No Fee basis, however this for a personal grievance where compensation is the requested remedy. We will now be charging an activation fee for all such work; what amounts to two hours work under the hourly rate model. The hourly rate model applies where Reinstatement is the main remedy the client is requesting. The hourly rate at LC Employment Law Limited is $200 + GST.

The hourly rate model applies where we enter into negotiations with an employer, to ensure continuity of employment, based on the edicts of the government regarding employers responsibilities during this time. We are committed to ensuring top rate legal advice and support in regard to the changing legal landscape during this time.