Duty of good faith
Disasters can cause serious interruption to both employers and employees. You and your employer must actively try to sort out any employment issues that occur in a way that is fair to both parties. You both need to tell the other about any concerns you have, respond to concerns when they are raised with you, and avoid being misleading or deceptive. This is called the “duty of good faith”. In many cases, your employer will have the final say about what happens with your job, but they must follow a fair process. Good faith applies to all the issues covered in this FAQ.
If your workplace is temporarily affected by flooding
Can my employer make me to work from home or somewhere else because of flooding?
In general, your employer can require you to work from somewhere other than your usual place of work, as long it is reasonable and doesn’t break the law. This can include working from home or from another location.
If your employment agreement says your place of work can be changed, this will usually be considered reasonable.
Your employer has a general duty to look after your health and safety at work, which includes taking reasonable steps to make sure the place you are working from is safe.
In some cases, this type of request may not be reasonable or safe. For example:
- If your home has been affected by flooding, and it isn’t possible for you to work from there
- If your work can’t be done remotely or from another location
If your employer has asked you to change your place of work, but you don’t think this is reasonable or safe, you should tell your employer about your concerns as soon as you can.
If you don’t want to speak to your manager or boss directly, you can contact your work’s health and safety representative or union rep (if there is one).
If your work doesn’t have a health and safety rep or a union rep, you can still speak to a union or a Community Law Centre for support.
You can refuse to do work if you think it would expose you (or anyone else) to a serious risk. The risk has to come from an “immediate or imminent” exposure to a hazard.If you stop work, you have to tell your employer or the health and safety rep about it.
You can contact Worksafe anonymously on 0800 030 040 if you’re concerned about any unsafe or unhealthy work situation.
Can my employer make me take annual leave because of flooding?
If you are ready to work but your workplace is closed, your employer can ask you to take annual leave. They should try to reach an agreement with you about when and how long this is for. If you cannot agree about when you will take leave, your employer has to give you at least 14 days’ notice before the annual leave starts.
Can my employer stop paying me or make an immediate change to my job because they have temporarily closed?
Your employer can only stop paying you or make an immediate change to your job if there is a clause in your employment agreement that says this.
This is usually called a “business interruption clause,” and is specific to situations of natural disaster or other unexpected events where your work has to temporarily close.
If your employment agreement has a business interruption clause, your employer still needs to consult with you about stopping your pay. This has to include looking at alternative ways to keep you working while the business is temporarily closed.
If your employment agreement doesn’t have a business interruption clause, they have to continue paying you as usual. You can still be required to take annual leave, but your employer has to give you at least 14 days’ notice.
If the changes at your work become permanent, your employer may start a redundancy process (see: “If your workplace is permanently affected by flooding” below).
Can my employer make me help clean up the workplace?
Your employer can require you to do work that is broadly related to your role, but not spelled out in your job description. This includes things like helping to clean up your workplace after a natural disaster.
Your employer still has a duty to look after your health and safety if you’re helping to clean up. You have the right to stop work if you believe that you, or anyone else, would be exposed to a serious health and safety risk while cleaning up. You should tell your employer, a health and safety rep, a union rep or Worksafe if you are stopping work because of this risk.
Can my employer make me work overtime because of a disaster?
You are free to turn down any work that is offered over and above your guaranteed hours, unless your employment agreement includes a clause that gives your employer some freedom about whether they make work available to you, and when you have to accept the work. This is usually called an “availability clause”.
An availability clause says that you receive reasonable compensation for making yourself available to work extra hours, and for the actual extra hours that you work.
If you are paid a salary, reasonable compensation is usually included in your total salary. In this case, you generally will not receive any additional pay for working reasonable additional hours.
If you are paid wages, reasonable compensation means extra pay for any extra hours you work. The rate of pay has to be set out in your employment agreement, but it doesn’t have to be more than your normal pay rate.
If your employment agreement doesn’t contain an availability provision then you can still agree to work extra hours, but you don’t have to. Payment for the extra hours will be at the rate that you and your employer agree to, so it’s a good idea to talk to your employer first and then confirm any agreement in writing.
Can my employer make changes to my day to day role or my hours?
Your employer has to discuss any proposed change like this with you first, in good faith. It is up to you whether you agree to the changes or not. For example: if your employer suggests that you reduce your hours of work, you don’t have to agree to it, or you could agree only to a temporary reduction.
If you do agree to any change, then you should think about whether you want the change to be temporary or permanent. Any agreed change to your employment agreement should be in writing, so both you and your employer are clear about what you have agreed to.
If your work can’t operate properly without the changes being made, and you don’t agree to the changes, your employer may start looking into restructures or redundancy instead. That would require a consultation process – see: “If my workplace can’t open again, what happens to my job?” below for more details.
If your workplace is permanently affected by flooding
If my workplace can’t fully open again, what happens to my job?
If your role will no longer exist, your employer can end your employment, but they have to follow a proper consultation process. You and your employer have to meet and talk about a possible decision before it is made. It includes your employer giving you:
- the reasons why your employer is proposing to end your employment, and
- all relevant information about the reasons for the proposal, and
- time to think about the proposal and to get advice from someone else.
You must then have an opportunity to give your employer your feedback, which might include suggesting alternative options. Your employer needs to consider your feedback before they make any final decision about whether the proposal to end your employment will go ahead.
You can find more details about the process your employer has to follow on the “Workplace change process” page on the Employment NZ website hereand in the Community Law Manual.
What if my workplace is closing, but other worksites or branches are staying open?
If your place of work is closing, but your employer will continue to run the business out of other workplaces, they have to offer you other suitable roles available in other parts of the business. This is called a “redeployment obligation”. This usually only applies to permanent staff.
If the number of staff eligible for redeployment is the same or less than the jobs available, you can be confirmed into the new role without a selection process. The role has to be comparable or a suitable alternative.
If there are more permanent staff than suitable alternative jobs, your employer has to follow a transparent selection process to decide who gets the roles. This process should be communicated clearly and allow enough time for you to consult with someone outside of the organisation about the process.
Can my employer end my employment without following the redundancy process if they don’t reopen?
Your employer has to follow the standard consultation and redundancy process, unless there is a clause in your employment agreement that says they can permanently stop your employment in cases of natural disaster or unexpected and unavoidable event.
This is usually called a “force majeure” or “act of god” clause and is specific to situations where your job will no longer exist because of the event. Your employer can only use this clause when the business will be permanently shut, not just to cover a break or short term closure.
If your employment agreement has a a force majeure or Act of God clause, your employer still needs to consult with you about this.
Will I get redundancy pay if I am made redundant?
The terms of your redundancy will depend on your employment agreement and the consultation process before the redundancy.
If your employment agreement sets out a redundancy notice period and compensation, your employer has to follow this. If your employment agreement doesn’t include any information about redundancy, your employer still has a duty to act in good faith – this means giving you a reasonable notice period for the redundancy, following the consultation process.
What is reasonable will depend on the circumstances and your role. The standard notice period for resignation, as set out in your employment agreement, might be a good indication of what is reasonable.
My employer did not claim financial support from the Government – I think they could have kept my job open if they did. What can I do?
Before your employer stops paying you or ends your employment, they have to consult with you in good faith. This means they should look into alternatives and try to find ways to keep you earning or employed. In some cases, it might be true that your employment could have continued if the employer had taken financial support from the Government.
If you are concerned that your employer could have received Government support but did not ask for it, then you should talk to your employer or your union rep about this. You can also get in touch with the Ministry of Business, Innovation and Employment and use one of their employment support services to help you resolve the issue. The early resolution service offers a quick and informal process that can be done over the phone. The mediation service is more formal and includes an independent mediator to help you come to a resolution.
If you or your whānau are affected by flooding
What happens if my workplace is open but I can’t get there ?
If you can’t get to work because of the floods or damage to the roads, you should tell your employer as soon as possible. What is reasonable here will depend on the circumstances – in the case of natural disaster, what is reasonable might be less notice than you’d normally be expected to give.
You have the right to ask your employer for changes to your working arrangements. This can be about when you do your work (which days or hours) or where you do your work (for example, working from home), or both.You and your employer should discuss in good faith what other options are available, like working from home temporarily.
The law says your employer can refuse your request only if they can’t make the changes fit with the business’s operations. However, this is a subjective test. If your boss says it’s not going to work due to their business operations, you can’t challenge or review this decision.
You can also talk with your employer about taking leave until you are able to return to work if flexible working arrangements aren’t an option
Can I take annual leave to deal with flood damage?
Your annual leave entitlement will be set out in your employment agreement. At minimum, you’re entitled to four weeks of paid annual leave at every 12-month anniversary of when you started your job.
You and your employer need to agree when the annual leave will be taken, but your employer must not unreasonably withhold consent to your request to take annual leave.
What if I don’t have any annual leave available?
If you aren’t entitled to annual leave – because you haven’t worked at your job for long enough, you’ve used all your leave – you may still be able to take time off.
If your employer agrees, you can take your annual holiday before you are technically entitled to it. This is called “taking leave in advance”.
If your employer agrees, you can take unpaid time off work. This is called “leave without pay”.
In all situations, your employer needs to agree before you take this leave. If there isn’t a clause in your employment agreement about taking leave in advance or leave without pay, your employer can still agree to it as a new or temporary arrangement. If this is the case, it’s a good idea to get them to agree to the request in writing: for example, over email or text.
What if I’m on a casual contract and don’t have annual leave?
If you’re on a casual or fixed term contract, your annual leave might be factored into your regular pay instead – if this is the case, you’ll usually be paid 8% extra in each pay, instead of accruing annual leave.
If your employer agrees, you can take time off work, but you won’t be paid for this time.
Can I take sick leave because of injury or illness from Cyclone Gabrielle?
You are entitled to at least 10 days of paid sick leave per year. If your employment agreement provides more than 10 days, you’re entitled to the higher number.
You can take sick leave if:
- you’re sick or injured, or
- your spouse or partner is sick or injured, or
- a person who depends on you for care is sick or injured (like your child or a relative you care for).
Your sick leave entitlement starts when you’ve been working at your job for six months.If your employer agrees, you may be able to take leave before you are entitled to it (called “taking leave in advance”). Those days will then be deducted from your sick leave entitlement when it kicks in.
If you are going to take sick leave you must tell your employer as soon as possible – for example, before you were supposed to start work or, if that’s not possible, as soon as you can.What is reasonable here will depend on the circumstances – in the case of natural disaster, what is reasonable might be less notice than you’d normally be expected to give.
Will I get ACC if I’m injured during Cyclone Gabrielle?
If you have been injured, you should be covered by the ACC scheme. This means the cost of any treatment is covered.
If you’ll have to take more than seven days off work because of your injury, ACC will pay you up to 80% of your income for the remaining time you are off work.
If the injury happened at work, your employer must pay you for the first week – this is on top of your sick or annual leave entitlement.
If the injury happened outside of work, you’ll need to take sick leave or annual leave for the first week, before the ACC payments kick in.
To get these ACC payments, you’ll need to visit a Doctor, who will complete an ACC claim on your behalf. If you’re not able to get to a treatment provider because of Cyclone Gabrielle, you can call ACC on 0800 101 996 to ask for help.
Specific information about ACC support after Cyclone Gabrielle can be found on the ACC websitehere.
My child’s school is closed. Can I take leave or work remotely while I care for them?
You have the right to ask your employer for flexible working arrangements. This includes when you do your work (which days or hours) or where you do your work (for example, working from home), or both.If you can work from home or work modified hours while caring for your child, you and your employer should discuss this option in good faith.
If working from home with your child isn’t a reasonable option, you can request annual leave. If you don’t have annual leave available, there may be other options – see: “What if I don’t have any annual leave available?” above.
What are my employer’s health and safety obligations?
Your employer has a ‘primary duty of care’ as a Person Conducting a Business or Undertaking (“PCBU”) under the Health and Safety at Work Act 2015 (“HSWA”), which means they must ensure, so far as reasonably practicable, the health and safety of workers while at work. Your employer must also ensure that other people are not put at risk from work carried out by the business. A “worker” under the HSWA includes individuals such as employees, independent contractors, and volunteers of that PCBU. The following advice is focused on employees and employers, but applies equally to other PCBUs and workers.
Following a natural disaster building owners may need to have buildings assessed to make sure they are safe. Your employer should have contacted the owner of the building that you work in to make sure it is safe to return to after flooding.
Whether or not your workplace is safe to return to will depend on lots of different factors. Your employer may carry out a risk assessment to identify and assess particular risks, and to determine how any risks will be stopped or reduced.
What obligations and rights do I have under health and safety laws?
As a worker, you must take care of your own health and safety and make sure that others are not harmed by something you do or do not do. You must also follow all reasonable instructions from your employer and comply with health and safety policies and procedures.
You have a right to stop work, or refuse to carry out work, if you think you or anyone else will be exposed to a serious health and safety risk from an immediate or upcoming hazard. If your workplace has a trained health and safety representative, they may also direct employees to stop unsafe work.
You need to let your employer or a health and safety rep know as soon as possible that you have stopped work and why. You and your employer need to act in good faith and make reasonable efforts to resolve the issue. If you still have a reasonable belief that the work is unsafe, you can continue to refuse to do the work. Your employer may require you to carry out alternative safe work (which falls within your job description) while your concerns are addressed.
What happens if my employer and I disagree about whether my work is safe?
If you and your employer have made reasonable efforts but the issue is unresolved, you can contact WorkSafe and ask for help. See the “health and safety issues” page on their website, here.