Unlawful dismissal – migrant worker

Unlawful dismissal – migrant worker

The Employment Relations Act (ERA) provides a legal framework with rules and basic entitlements when it comes to employees and employers. It also sets out penalties and ways of resolving issues at work. Case law shows us what mistakes and learnings there are from real-life situations. This blog demonstrates some vital information: 

  • Employers have an obligation to support visa applications *
  • Employers cannot replace an employee if the role is already occupied **
  • Employers will be penalised for making mistakes.
  • Get advice, a consultant like me will also be able to tell you if you need help from a licenced immigration advisor. 

Restaurant Brands fined $18,000.00 

The ERA reviewed a statement of problem that was filed regarding a migrant worker and Restaurant Brands Ltd (RBL)
Initially, RBL helped the employee obtain a two-year employer-assisted work visa, as when he started working for RBL his open work visa was due to expire shortly. The employee had an expectation that RBL would continue to support him with his visa requirements, but they did not help him. In fact, you might say that RBL ignored his request for help, or at least it was significantly delayed. 
Some months before his visa expired the employee asked RBL for documentation to support his work visa application. The employer responded some weeks later saying that he needed a visa to be able to work and without it, his employment would end. 
Shortly afterwards the employer opened a recruitment process for this employees role. Thinking it was part of the process, the employee applied for their role and as you may guess the employer terminated the employees’ employment a day out from his visa expiring. 
The ERA found that the employer unjustifiably dismissed the employee as they replaced him before the expiry of his visa. The ERA also found that RBL had also unjustifiably disadvantaged the employee by:
  • failing to assist them with their visa application
  • not being open and communicative with the employee about their view they didn’t think the employee would successfully get a visa, and 
  • second-guessing the outcome of the visa application and predetermining the employee would not want to waste money on it. 

This cost RBL dearly, the ERA imposed a compensation payment to the employee to the value of $18k for essentially “getting it wrong”. 

Learnings/ take aways

If you want to prevent issues like this from happening in your workplace you should seek individual advice as each situation is so different and contributing factors might create fish hooks. 

This case highlights the expectation from the ERA that employers have when it comes to helping an employee with their visa application. 

Simply put, an employer cannot hire an employee if they do not have a legal right to work in NZ. However, an employer has a responsibility to treat employees fairly. If you find you have an employee in a role and they lose their right to work in NZ there is a procedurally fair way to consult them before making a decision. 

If this case has taught us anything else, it is that it is unlawful to replace an employee where they are still employed in the same role – this doesn’t apply to a growing business where you need more people doing the same thing. 

* An employer needs to support existing staff with their visa applications. This does not apply to candidates – employers can employ staff who already have a visa/citizenship or residency.

** There are some situations where you can recruit for a role another employee holds – such as if that employee resigns, is going on leave, is seconded.