Case update: visa holders must be treated in good faith by their employers

A recent Employment Relations Authority (Authority) case has highlighted the importance of employers acting  in accordance with their good faith obligations under section 4 of the Employment Relations Act 2000 (Act) when it comes to employees who hold work visas.

The facts

In the case of Gill v Restaurant Brands Limited, Mr Gill was a permanent employee of Restaurant Brands in a management position. Ahead of his visa expiring, he emailed the companies HR department to request the supporting documents required to complete the application for his Essential Skills Work Visa. Mr Gill heard back from Restaurant Brands, who made it clear that if Mr Gill failed to obtain the valid visa then his employment would terminate. Mr Gill was also notified, that he would be required to make an application for his current role but was assured that this was simply a formality involved in the visa process. Mr Gill then received a phone call from Restaurant brands, a few weeks before his visa was set to expire. He was advised that his application to retain his position was unsuccessful and as a result the company would not be supporting his application for a new visa. Mr Gill’s employment agreement contained a provision, which provided that if his legal right to work in New Zealand is withdrawn for any reason that their employment will terminate. Mr Gill was unable to apply for the Essential Skills Visa without Restaurant Brand’s support, and another person was appointed into Mr Gill’s role. As such, he raised a personal grievance for unjustified disadvantage and unjustified dismissal.

The decision

The Authority relied on Restaurant Brands obligation under section 4 of the Act, which is a positive duty requiring employers to be clear and communicative with their employees. The Authority held that Restaurant Brands had failed to communicate as early as possible with Mr Gill that they were not intending to support his visa application, and the reasons why. The Authority also held that employing a New Zealand citizen into Mr Gill’s role without the visa application process being undertaken was pre-emptive and further disadvantaged Mr Gill. Mr Gill received compensation of $18,000 under section 123 of the Act. Although, lost wages were not awarded as it was recognised that Mr Gill would not have continued his employment after the date in which is visa had expired.

The lessons

This case is a good reminder, that employers should not pre-determine the outcome of a visa matter or the labour market test as this will only disadvantage employees on work visas. But rather, employers have a positive duty to be clear, communicative and act in good faith – in reality, this means that employers must let employees know as early as possible if they are not intending to support their visa application and the reasons why. Along side this, advertising for a position should only occur when you are confident that the role will be vacated properly.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria GreenHannah Martin, Joseph HarropHolly StruckmanAlex Beal, Giuliana PetronelliAbby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh)Sarah Kirkwood, Janeske SchutteLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

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