How To Dismiss An Employee When Their Visa Runs Out
We all know the rules - anyone you employ must have a legal entitlement to work in New Zealand. This means checking their birth certificate (with photo ID) or passport when recruiting. If an individual is a migrant, they will also likely have a work visa which you need to sight - this may have restrictions on the type of work they can do, how much work they can do. who they can work for and for how long they are able to work.
Many of the migrant my client's employ hold what are commonly referred to as 'temporary work visas'; open work, working holiday or student work visas. These all have restrictions in regard to their duration of eligibility to work in New Zealand; often three months, 12 months or three years etc.
It is recommended that to avoid unwittingly hiring someone beyond their entitlement to work, you should carefully record or calendar a review of their conditions prior to their lapse as to mitigate the risk of continuing to employ that person after their visa expires.
But let's say that you didn't. Their visa has expired. What now?
This is where you need to note that as an employer, you have you have competing obligations between the immigration rules (and exposing yourself to a penalty), and your duty of good faith under the Employment Relations Act 2000. If you were to simply dismiss your employee without a fair process, you might run the risk of breaching those employment obligations.
You can fairly dismiss an employee if you have good reasons for ending their employment and follow a fair process to arrive at your decision to dismiss - nothing has changed here. And, there is no doubt that you have good reasons to dismiss an employee if they are not entitled to work. So that aspect is covered.
Nevertheless, you must still follow a fair process as far as possible – though you may need to act quickly. Furthermore, it is important to note that you are not at risk of a penalty if you continue to employ someone who is not entitled to work for their contractual period of notice after you have communicated your decision to dismiss. But you can’t continue to employ them after their period of notice has ended, furthermore; you can't unnecessarily drag this process out.
Putting that together, a fair process may look something like the following:
Tell the employee what you understand about their entitlement to work and ask them to meet with you urgently to provide their response. Advise them that if they are not entitled to work, you will need to terminate their employment. Invite them to bring a support person to the meeting if they wish.
Meet with the employee and listen to their response. Ensure that there are no misunderstandings about their entitlement to work.
If it appears that the employee is not entitled to work, give them notice of termination. Advise the employee that they are able to continue to be employed for the period of their notice of termination specified in their employment agreement.
Continue to employ them for the period of notice of termination, but ensure their employment ends after that period of notice expires.
So in summary; when you employ staff, you must take care to ask about their entitlement to work here and to seek proof of that entitlement as failure to do so could lead to you employing someone who is not entitled to work and receiving consequent penalties.
If you find out that someone is no longer entitled to work, you must take swift action. Ultimately, you have good grounds to dismiss if there is no entitlement. Nevertheless, you must respect the period of notice specified in their employment agreement.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.