KEY POINTS:
Q. I am taking annual holidays and will be away from New Zealand for one month. Can my employer end the job during this period and inform Immigration New Zealand not to let me back to New Zealand again? (This employer offered the job to me and sponsored
me on a two-year working visa).
A: Several issues arise from this scenario. First, I assume the annual leave will be taken with your employer's consent. Taking a holiday without the consent of your employer can be grounds for dismissal. In some cases, employment agreements expressly state that in such circumstances an employer has the right to terminate employment without giving the employee notice.
Your employer cannot dismiss you without giving you a good reason. Under the employment law, an employer cannot dismiss an employee without showing just cause. Common grounds for dismissal for just cause include:
* Unsatisfactory work performance.
* Incompatibility with the organisation/other employees.
* Persistent absenteeism or other attendance problems.
* Breaches of the duty of loyalty, trust or confidence.
* Negligence.
* Incompetence (where a person purports to possess particular skills and turns out not to have those skills).
* Misrepresentation or misconduct.
In respect of notice, there is no legislative requirement to give notice. This applies to employers and employees. But most employment agreements provide for a notice period if an employer wants to terminate the employment agreement.
So your employer cannot dismiss you while you are away overseas if your employment agreement expressly states that your employer has to give you notice if the employer wants to terminate your employment.
You must remember that even though you have been sponsored to work in New Zealand, you are protected under the ERA and related employment legislation regardless of your immigration status.
The immigration issue overlaps the employment situation. Where you have been recruited by a New Zealand employer to work here, your eligibility to work in this country - that is, your immigration status - affects your employment.
Because employers have to meet compliance obligations under employment law, it is an offence under the Immigration Act to continue to allow any person to undertake employment knowing that the person is not entitled to work in New Zealand. So if during the term of your employment your work permit/visa expires and your employer is aware of this, your employer may give you notice that your employment will end because of your ineligibility to work in this country.
The employer certainly has no power to influence Immigration New Zealand in its decision to let you back into the country.
I do not have enough information about your situation. I suggest you sort out any issues you may have relating to your work permit/visa before you go overseas. You should contact Immigration New Zealand.
Read your employment agreement carefully. If you are still concerned about your situation you should contact an employment lawyer.
Your holiday would certainly be more enjoyable.
