Last Updated 16 March 2020 9:51 AM
Currently the law is untested on this issue. What we're trying to do here is give generic advice as to we interpret the situation with all the information that we have to hand. This is purely our opinion and is not backed up by any legal example at this stage.
The issue with regards to people not being at work due to this pandemic outbreak in our opinion is currently quite clear. We believe;
Should the employer request or expect its employees to stay away from their workplace while they self isolate due to this virus, then it is the responsibility of the employer to first of all payout this person by way of sick leave and then once sick leave has been exhausted to grant them special leave with pay that does not come off their holiday pay entitlement.
Should the employee elect to stay away from work due to self isolation or the employee is required by instruction of our government to isolate themselves thus being away from work then the employer is obliged to only payout the available sick leave, followed by any annual leave accrued and then the employer must grant leave without pay. The only exception to this would be if it is fair and reasonable for the employee to be able to complete their reasonable work duties away from work whilst in self isolation. Should this be the situation then the employment relationship should carry on as per normal with the employer paying the employee as though it is a normal working day.
Other questions have been put to us about this situation. If your answer is not here, then email us your question and we will post the answer here.
Employers requesting employees to take a salary or pay reduction.
A change in employment agreement terms can only happen in one of three ways. The first is that the parties agree to the change in terms, that is the employee agrees to what the employer has requested. There is no obligation for an employee to agree what the employer has requested, even under duress from the employer. The second is that if the employee does not agree to what the employer has requested then the employer may go through a restructure process whereby effectively the employee's job is disestablished and potentially a new role is created. For an employer to do this they would be required to go through a full and formal restructure redundancy process. The 3rd way the terms of employment may change ah through a disciplinary process whereby someone is terminated for either prior multiple warnings and misconduct or no prior warnings and for serious misconduct.
Do I have to tell my employer I will be required to take unpaid leave upon returning to NZ?
At this stage we know what we know. What we don't know is the requirements our government will have on self isolation in the future. Under your good faith obligations it would be wise to discuss the potential of having to take unpaid leave upon returning to NZ. However, with this being a moving target it would be unreasonable for an employer to request that you cancel leave on this basis.
Can my employer cancel my leave?
If an employer has granted you leave, they may request that you cancel your leave, but there is no obligation for you to grant them this request. It all depends on your circumstances. If you have booked and paid for food party arrangements as part of your leave then it would be unreasonable for your employer to have the ability to cancel this leave unless of course they were prepared to reimburse you for all these costs. Where leave involves you attending life cycle events or other situations where there are no direct costs but the cancelling of the leave would have a significant impact upon you then again it would not be fair or reasonable for your employer to expect that you cancel such leave. With the party's obligation to act towards each other in good faith it would be best to discuss this issue with your employer in an attempt to come out with hey consensual outcome that wall may not be liked by either side is something you can both live with under the circumstances. However, the long and short of it is an employer does not have the right to cancel approved leave.
