Monday October 01, 2007

I employed someone who had a work permit to work in New Zealand. I've always known about their work permit and that it was due to expire last month so the last few months I have asked her many times if she has applied to extend it. She seemed to be waiting until the last minute to do it. She has finally admitted to me today that her work permit has lapsed and her new application has not been considered yet. Can I dismiss her for not having a work permit? Can I get in trouble for continuing to employ her?

These sorts of issues are becoming more common as New Zealand employers look to overseas workers to meet their skills shortages.

The short answer is you may be able to dismiss the employee if she no longer has a legal right to work in New Zealand. There could be consequences for you if you continue to employ someone not entitled to work in New Zealand. But first you need to follow a proper process to investigate her right to work and you should consider alternatives to dismissal.

You should start by properly investigating her right to work under the Immigration Act. If it appears she has no right to work at present, you could invite her to a disciplinary meeting about her right to work. You should tell her all the information you know about her right to work and invite her to bring any information she has, and a support person or representative.

You need to tell the employee that the outcome of the disciplinary process may be her dismissal.

At the meeting you need to properly explain the information you have and give her a chance to respond to it and give her own information. You need to properly consider what she tells you.

In this situation, you may want to consider alternatives to dismissal. For example, you could offer to agree to a suspension from work until her renewal application is considered. This would be on the basis that she can return to work if her work permit is renewed. If it is not, you will hold a further disciplinary meeting, the outcome of which may be her dismissal.

If you do decide to dismiss due to ineligibility to work in New Zealand, then you must give the employee the usual notice in the employee's employment agreement. This is OK, as under the Immigration Act it is not an offence to continue to employ a person during their notice period.

But if you do nothing there could be consequences for you. Continuing to employ someone you know is not entitled to work in New Zealand is an offence under the Immigration Act. The penalty is a fine not exceeding $50,000.

For the future, you may wish to cover immigration status in your employees' employment agreements. You could require non-resident employees to tell you about, and keep you informed of, their immigration status. You could say that wilful breach of the obligation is serious misconduct. This might allow you to dismiss without notice.

(Source Rani Amaranathan, solicitor in the employment team of transtasman law firm DLA Phillips Fox)