Crossing the ditch: it’s not all bubbly  

Ever since the long-promised Trans-Tasman travel bubble became a reality on 19 April 2021, people have been crossing the ditch on the regular to visit family and friends, and to savour the much-coveted overseas holiday.

But we have been duly warned by the recent community outbreaks in Victoria, New South Wales and Queensland: the bubble is fragile and can burst at any point.

When it does, what happens to employees who are stuck overseas?

The starting point is that good faith obligations persist even in such circumstances. Unfortunately, the appropriate application of the duty of good faith, and subsequent response and outcome, is entirely dependent on the unique facts of each case. We know this advice is far too general to be helpful, so we consider some frequently asked questions below.

Can I just reject my employee’s application to take leave overseas and save the trouble?

Employers must genuinely consider an employee’s request for leave and cannot unreasonably deny such a request.  The three most relevant reasons for denying a request in these circumstances are:

  • If the employee is required to be present at work during the requested leave period due to prior commitments; and/or
  • If there appears to be a real health and safety risk associated with traveling overseas; and/or
  • If the employee is required to be present at work for an important in-person matter shortly after the requested leave period and the employer cannot take the risk that the employee’s return home will be delayed due to a COVID-19 outbreak.

The first reason is self-explanatory and the second reason is unlikely to be justifiable under the operation of our current border restrictions, as the travel bubble is only open under stringent conditions, and all people traveling back from non-bubble countries must undergo compulsory quarantining. It would be difficult for an employer to argue that health and safety risks are not already contained by these measures put in place by the Government.

The third reason is the one that we think employers will most commonly rely on. If an employee’s delayed return to New Zealand, or a spell in managed isolation in New Zealand, is likely to be seriously disruptive to the performance of the employee’s role, an employer may be able to justify rejecting the leave request, citing the risk of an outbreak in Australia. In all cases, the employer must discuss the matter with the employee in good faith and be open to negotiating alternatives.

Am I responsible for the employee when they’re stranded?

This depends on the reason why the employee went overseas.

If they departed for personal reasons, such as to visit family, then they are responsible for their own arrangements. However, if they departed for business reasons, the employer will be responsible for ensuring they are looked after while overseas. The employer will also have to pay for managed isolation if the employee is required to quarantine upon their return.

How long should I wait before termination becomes a reasonable option?

The question of termination would only arise after months, not weeks. Employers will have to consider the employee’s role when pondering termination. If the employee can perform their duties remotely and requires minimal supervision, you will be hard pressed to argue that termination is a fair and just response.

Even where the employee’s role is one which cannot be carried out remotely, the employer must turn their mind to factors such as:

  • When can the employee return home? If they are able to catch a flight in two weeks’ time, it’s a stretch to say that it is unreasonable to keep their employment open.
  • Alternative solutions: can other employees fill in for this employee? Can a temporary worker be employed for the period they are away? Can the employee take special or unpaid leave?
  • Communication: has the employer been maintaining active and ongoing communication with the employee throughout this period? Without ongoing communication, the employer is arguably in breach of their good faith obligations.
  • Consultation: in the same vein, the employee should be given the opportunity to provide their feedback on any proposal to terminate before the employer determines the final outcome. An employee’s entitlement to a fair process doesn’t vanish even in the face of a pandemic.

Our recommendation

Employers should ensure they implement a policy or procedure to deal with employees going overseas. The policy should not be overly rigid; it should be flexible and allow for the ability to deal with each situation on a case-by-case basis. However, it should also make employees aware of the risk of traveling, in that termination may become an option where there are no other workable alternatives.

If they have not already done so, employers should also put in place a remote working policy. This is to ensure that:

  • Health and safety duties are upheld (these continue to exist even where the employee is working remotely);
  • Risks such as privacy breaches are contained; and
  • There is appropriate guidance and structure for the employee to follow.

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