Authority finds applicant not employed for purposes of personal grievance claim…

The Employment Relations Authority has rejected an applicant’s personal grievance claims of unjustified disadvantage and dismissal after deciding that she was not actually an employee. 

The applicant applied for a job with the employer, which required obtaining a renewed work visa before she could start work. The employer and employee signed an individual employment agreement.

During the process of obtaining the visa, the employer failed to provide all necessary information to Immigration New Zealand. No visa was granted and the applicant was forced to move back to her home country.

The applicant raised personal grievance claims of unjustified disadvantage and dismissal, seeking costs for the loss of work and being forced to move countries.

In order to raise a personal grievance claim in the Authority, a person must first be an employee. In this case, the applicant argued that she was an employee for the purposes of the Employment Relations Act, as she was a person “intending to work”.

The Authority held that to be a person intending to work, there must be a valid offer and acceptance of employment. This means that there cannot be an employment offer that is conditional on factors such as satisfactory job references or, in this case, obtaining a work visa.

Even though there was a signed employment agreement, the Authority decided that the applicant could not have been employed, as that was impossible without first obtaining a work visa. There was no offer of employment capable of being accepted and so the applicant could not be a person intending to work for the purposes of the Act. 

The Authority dismissed the claim and the applicant was unable to receive any compensation.

It is important to know your rights and obligations as an employee. If you are unsure about your rights, 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.

Alan Knowsley and Hunter Flanagan-Connors