by Tony Stevens
With the nation under house arrest and businesses being forced to close, you might be worried about whether you will still have a pay-check coming in. I don’t blame you.
To help avoid the queasy sensation of financial insecurity, here is some legal advice and pointers to help you make sure you are treated fairly in your employment relationship.
Can my employer force me to take leave?
Not in most circumstances.
Unless you (or your dependent) are genuinely sick your employer cannot make you take sick leave to cover the lockdown. Nor are you obliged to use your annual leave during this period. Taking annual leave is voluntary and should be used on a vacation – not a nationwide lockdown. You could agree to use your sick and annual leave during this time but don’t feel pressured to. You don’t have to if you don’t want to.
Employers can require workers to take annual leave during an annual closedown period but this has to be notified in writing 14 days before the closedown comes into effect. However, closedowns would typically be used for a holiday period or in the case of a seasonal break – not for a worldwide epidemic.
What should employers be doing?
Employers should be leaving your standard leave entitlements alone and paying you special paid leave during the lockdown. This is not leave you are typically entitled to but it’s the right thing to do. Employers should be enabling a conversation with their workers around what the expectations are (on both sides) during this situation, and a mutual agreement should be reached.
Won’t businesses go bankrupt if they keep paying staff?
A lot of businesses that employ young people will be forced to close down and typically this would make it hard for employers to retain staff. However – the government is offering a wage subsidy for employers for the express purpose of keeping staff employed and keep the pay-checks flowing. If your employer is receiving or going to apply for the wage subsidy then you should be benefitting from it. If the boss is getting government money and isn’t paying you then they are not acting like a fair and reasonable employer and are putting you at a disadvantage. This could open the door for a pretty hefty personal grievance case against them.
The wage subsidy is $585.50 for full-time workers and $350 for part-time workers.
What about changing my hours?
Not if you are a permanent employee. If you are a permanent worker and have set hours (part or full time) these cannot be changed without your express consent. Contracts are sacrosanct and locked-in and can only be changed by mutual agreement between the parties involved.
For casual workers I have bad news. I can’t see a scenario where you won’t lose some if not all of your hours. The very nature of a casual agreement means your employer has no obligation to offer you work. However – if they have in fact been treating you like a permanent worker up to this point and the expectation is that you show up for regular shifts then you would be considered by law to be a permanent employee. This is worth exploring with your either your employer
Can the dismiss me because they’ve shut down?
Employers would need to have a genuine reason to make you redundant. With the wage subsidy available to all employers they don’t really have an excuse. But again, I am deeply concerned for “casual” workers. Many employers take advantage of casual contracts to have a flexible labour on hand and under the law they have no obligation to offer them any hours. I fear that these workers will basically be let go and the wage subsidy will not be able to help them. I hope I’m wrong.
Working from home
You might be lucky enough to have the sort of job you can from home. If this is possible your employer must consider this as an alternative to putting you on leave or worse – terminate your employment.
This is a dynamic, constantly shifting situation and new scenarios are being thrown up every day. The YWRC will do our best to help you strategise and navigate employment in lockdown, so if you have any questions or need support please email: [email protected].nz