Part one of our three part series

We hope you are taking care of your family and yourselves in these unprecedented times.  To help navigate some of the employer work issues that have arisen as a result of the COVID-19 lockdown we thought we would provide some information on employment rights and obligations that you may find useful.

In this three-part series we follow one fictional character’s situation with each post separately considering three different issues, including:

  1. being made to take annual leave by an employer during lockdown;
  2. health and safety obligations of an employer for those working in essential services; and
  3. obligations of an employer who is receiving a government wage subsidy for an employee.

TAKING ANNUAL LEAVE

In this first post we look at a situation where an employee is told they must take annual leave without proper process being followed by an employer.

We find scenarios are a useful way to share possible examples of how things could play out so we’d like to talk about “John’s” work situation.

John has been driving a food delivery truck for 4 years working for a company based out of Wellington. His work is considered an essential service. 

John actually lives in Palmerston North with his elderly mother but is required to stay away from home during the week in accommodation provided by his boss.

On Thursday afternoon of the first week of the Covid-19 lockdown, John was directed by his boss to take two weeks annual leave, starting on the following Monday.

There was no prior discussion between John and his boss about taking annual leave at this time, so John told his boss that he did not wish to take annual leave. Before COVID 19 John had been saving his leave up to use later in the year for a holiday he had planned. However, his boss told him that he must take annual leave from the following Monday. 

After further thought later that day John tells his boss again he doesn’t want to take annual leave at this time as he may need it later on if his mother falls unwell.  His boss is steadfast and so John follows as directed as he is scared of what might happen if he doesn’t follow his boss’s instructions.

What are John’s rights?

Annual Leave

  • First, an employer MUST consult with an employee about taking annual leave to attempt to agree on the timing of when it can be taken. 
  • There must be a “good faith” attempt to agree a solution to the situation.  In other words, the discussion to come to a mutual agreement must be genuine and not forced by the employer in one direction.
  • If there is no agreement, then (and only then) an employer has the right to advise the employee with (at least) 14 days’ notice beforehand that they require them to take annual leave.

In John’s situation it appears that:

  1. there was no discussion by the employer with John beforehand to attempt to agree on the timing of when John would have to take annual leave;
  2. there was no “good faith” attempt to agree a solution; and
  3. there was definitely no 14 days notice allowed to John when he advised his employer that he did not agree to the timing.

This means that John’s employer would likely be in breach of their legal obligations in this scenario. 

John should first write down his concerns and give them to his employer to start a discussion with him.  If John feels his employer is not treating him within his rights, then John should discuss it with an employment law advocate who can speak to his employer on John’s behalf to resolve the situation.

Further resources that may help you on this topic:

In our next blog we will continue with John’s story and what is required when returning to work.

Keep safe, keep strong and take care of yourselves and each other.

The information in this post is intended as a guide and not intended to be legal advice and is not intended to be specific legal advice to any specific individual.  If you need legal advice, please seek advice from a legal provider.