Do employers have to help employees with their visa?
The Employment Court recently considered how employers have an obligation of good faith when it comes to an employee applying for a visa to continue work. The Court found that an employer may be required to assist an employee with obtaining a visa – merely “tick box” steps were not enough.
In Gill v Restaurant Brands Limited , Mr Gill’s offer of employment was conditional on him being legally entitled to work in New Zealand. However, it was a permanent job. The Court noted this implied there were mutual obligations around a long term employment relationship.
At the time he started working for RBL in 2017, Mr Gill was on a certain visa but had to apply for a new visa – with RBL’s help – a few months later. RBL did indeed provide the requested documentation for Mr Gill to apply for this new visa, which he successfully obtained.
This second visa was due to expire in early 2018, and Mr Gill again sought RBL’s assistance, this time in applying for an Essential Work Visa. In essence, RBL had to conduct a labour market test for Mr Gill’s role and in doing so, found a more suitably qualified New Zealander to perform his role. However, a few weeks before Mr Gill’s visa expired, another role at RBL became available that Mr Gill would have been suitable for (but RBL did not inform Mr Gill of this). Furthermore, the day before Mr Gill’s termination, the New Zealand replacement for his role resigned, meaning the labour market test could have been considered a pass rather than a fail.
The Court looked, in detail, at each communication between Mr Gill and RBL. It was clear that Mr Gill was not well versed in immigration matters and that representatives for RBL were. The Court found that RBL had not done enough to ensure that Mr Gill understood the consequences of each step of the process and their impact on him. RBL were too high level in their responses to Mr Gill and didn’t seek to ensure he understood what was happening.
The Court said that the standard of good faith behaviour is high and responsive. An employer needs to provide an employee access to information relevant to the continuation of an employee’s employment. RBL needed to constructively consult and engage with Mr Gill around his visa and the process, and when a potential role for him became available the day before his visa expired, RBL were obliged to tell him about it.
If you have an employee on a visa, it’s not enough to push the responsibility for renewing it onto the employee. Obligations of good faith and being a fair and reasonable employer extend to the immigration process.
If you have any questions or queries in relation to employers providing help to employees with their visa, please get in touch with the Watermark team directly. We are happy to advise you.