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'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 for employers.
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 plans.
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 status.
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.