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Unjustified dismissal after employer fails to provide forms to employee for renewal of work visa...
The Employment Relations Authority has recently ordered an employer to pay $15,000 to an employee for their successful claims of unjustified disadvantage and unjustified dismissal.
The employee worked for the employer under a work visa. The employee had several issues in the workplace during his employment, including a physical altercation with another employee and being bullied.
The employer failed to return the employee’s work visa renewal application within sufficient time. This meant that the employee’s work visa expired and he could no longer work for the employer.
After not hearing from the employee regarding his employment status the employer terminated his employment.
The employee raised personal grievance claims of unjustified disadvantage and dismissal with the Authority.
The Authority first had to consider whether the employer had acted unfairly or unreasonably, causing the employee to be unjustifiably disadvantaged in his employment.
The Authority found that the employer had followed a fair process regarding the physical altercation – the employer had investigated the claims as well as issuing both employees with a warning.
However, the Authority concluded that the employer had not fairly investigated the employee’s claims of workplace bullying. The employee argued that he had made various complaints to the employer, including about being ostracised by other employees.
The employer argued that the employee had not allowed him to investigate the claims of bullying. However, the Authority concluded that the employer should have properly considered and addressed the employee’s complaints, given the ongoing nature of the complaints.
Failing to investigate the employee’s claims meant that the employee’s situation at work was made worse and he became isolated. The Authority did however hear evidence that the employee had contributed to the situation, including by being rude to other employees.
The Authority concluded that the employee had been unjustifiably disadvantaged by the employee’s failure to properly investigate his complaints.
The Authority also had to consider whether the employee was unjustifiably dismissed. An employee will be unjustifiably dismissed if an employer failed to act as a fair and reasonable employer could have in all the circumstances.
In this case the employee had contacted the employer requesting that they complete their work visa form, one month before the employee’s visa was meant to expire. The form was not completed until less than 10 days before the work visa expired.
This failure meant that Immigration New Zealand could not process the form before the visa expired, and the employee had to request a special visitor visa.
The employer sent an email to the employee over one month later, and then again two months later. These requested information regarding the employee’s visa status. The employee never responded to these emails, and his employment was terminated the day after the final email.
The Authority decided that the employer had failed to consult the employee throughout the visa process. Further, the employer did not follow any proper processes before terminating the employee, such as meeting with him and seeking feedback. The employee was therefore unjustifiably dismissed.
The employer was ordered to pay the employee $8,000 for his successful claim of unjustified disadvantage. This was reduced from $10,000 after considering the employee’s contribution to the workplace issues.
The Authority also ordered the employer to pay the employee $7,000 for unjustifiably dismissing the employee.
It is important to be aware of the processes you must follow as an employer when it comes to employee disputes and termination. If you are confused about your obligations, it pays to seek advice from a professional with experience in the area.
Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are. At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.
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