Tasman Fires - Employment Advice

Our thoughts are with all those affected by the fires, and we hope everyone continues to be safe. Many of our clients have been affected both personally and in their businesses. If your business has been directly impacted and you need some advice or simply someone to talk to, please call us. For our clients we are providing services for up to two hours without charge for employment matters directly relating to the fire. 

If you need a space to meet or get together with other affected business’s we are offering the free use of our training room at 56 Waimea Road. And if there are a group of businesses that want to discuss their options and obligations we are happy to organise a get together for you and also come along to offer free advice. 

This NewsFeed is aimed at answering many of the common questions we have been getting. If you have others, let us know and we will put out an updated NewsFeed later in the week. 

 1.       My employee has been evacuated from their home. They don’t want to / can’t come to work because they want to take care of their family. We are really busy. Can I require them to come to work?

If you can possibly let them have the time off, we recommend you do so. The chances of them being particularly productive at work are limited, and it will create goodwill. If you genuinely cannot give them the time off work, you can require them to attend. If they decide not to, the next step requires  further action. The option is to take disciplinary action and the question will be whether a warning under the circumstances will be seen as fair and reasonable in the circumstance. It probably won’t be.

 2.       I am happy for my employee to take the time off, but do I have to pay them?

If you have work available and they don’t come to work, you don’t have to pay them. You may come to an agreement with your employee that it is an annual leave day or you may choose to pay them without making a deduction from leave.

The leave options are:

  1. Annual holidays
  2. Anticipated annual holidays or additional annual holidays
  3. Using an entitled alternative holiday
  4. Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
  5. Leave without pay
  6. Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
  7. Advance on wages

 3.       Can they take the day/s as sick leave?

Unless they are sick or injured, or a person dependant on them for care is sick or injured, this is not sick leave.

 4.       My employee is a fire service volunteer, LandSAR or other type of volunteer, what are my rights and obligations?

There is no obligation to either allow the time off from work or to pay them for it, unless you have a specific clause in your Employment Agreement or in a policy. Again it is for you to agree what will happen with your employee. Refer to question 2 for your leave options.

 5.       The school / day care has been closed so my employee can’t come to work because they need look after their children.

There is no obligation to pay them for the absence. Refer to question 2 for leave options.

 6.       My business has had to close temporarily because of the fire or restrictions placed on it by TDC /NCC (e.g. machinery can’t be used and forestry has been stopped). What do I do?

In brief:

  1. Keep in touch with your employees.
  2. Check your insurance.
  3. Check the terms of your Employment Agreements and policies.
  4. Consider alternative work/locations.
  5. Discuss the options with your employees.
  6. See if you can reach agreement on a course of action.

Keep in touch with your team so they know what is going on. Depending on the size of your business you may want to set up a face book page to post regular updates as a way of managing the communications. 

Check your insurance. You may have business interruption insurance. Depending on your policy this may cover some of the wages for employees. 

Check your Employment Agreements, you may have a ‘Force Majeure’ clause. This clause ordinarily means that following an ‘act of God’ the employer is not obliged to pay the employee if they are unable to provide work. 

Consider whether you can temporarily relocate or carry out alternative work in the interim.

 Discuss the options with your employees. Remember your obligations of good faith which includes being communicative and responsive. 

See if you can reach agreement on a course of action. Options include the employee taking annual leave, the employer agreeing to pay the employee without leave deductions up to a specified limit.

You can only require an employee to take annual leave if you haven’t reached been able to reach agreement and have given a minimum of 14 days notice. If they do not have leave entitlement you cannot require an employee to take leave.

 

 7.       Do I have to keep paying my employees? I can’t afford to without money coming in. 

If you do not have a ‘force majeure’ clause, and the Employment Agreement provides the employee with a minimum number of hours of work, and your employee is available to work, the employer is obliged to pay them. Refer to question 6 for alternative options. 

The Ministry of Social Development is providing assistance and can be contacted on 0800 559 009. 

 8.       I have shift employees. What are my obligations with them if I cancel work? 

Because of the requirements relating to cancelling shifts, if your employees are shift employees then shift cancellation requirements apply. These should be specified in your Employment Agreements. 

There were changes to the Employment Relations Act effective 1 April 2016 which states what is required if cancelling a shift for a shift worker. Please note this is only for shift workers. This means their employer can’t cancel one or more of their shifts unless: 

the employment agreement has:

a reasonable period of notice for cancellation, and

reasonable compensation payable to the employee if the employer cancels a shift without giving reasonable notice, and

the employer either gives the employee the above notice or pays the reasonable compensation above, and

cancelling the shift doesn’t breach the employment agreement. 

If the employment agreement doesn’t have a valid shift cancellation provision and the employer cancels a shift anyway, the employer must pay the employee what they would have been paid if they had worked the shift.

 

Mental Wellbeing of your Team 

We all react differently to stressful situations. While some people will react well during the crisis, they can be affected some time after the event. 

Keep an eye on your team, check in with them, ask them how their families are doing and if they need any help. If your organisation offers EAP (counselling), remind employees it is available. You may consider bringing an expert in to talk to your team about the effects of experiencing a crisis, the signs to watch for, and steps they can take to keep themselves well. 

Here is a helpful link to a government site on managing Stress in an emergency. 

https://www.health.govt.nz/your-health/healthy-living/emergency-management/managing-stress-emergency/stress-after-emergencies