This article comments generally on employment law and immigration policy. This article should not be used as a substitute for legal advice in your specific situation.
What happens when immigration policy meets employment law?
Specifically, when immigration policy favors the employment of New Zealand applicants over migrant workers meets employment law obligations to all workers?
An Employment Court reminder to always uphold good faith duties or face hefty penalties, such as the $45,000 that was ordered in the case of Dilshaad Gill v Restaurant Brands Limited.
Gill was an overseas worker with a work visa expiring in a few months. He approached his employer to support him with a further work visa, but two New Zealand applicants were suitable, and the employer did not support the documentation for the work visa.
The Labour Market Test requires that when a suitable New Zealand Resident or Citizen applies for a role, they must be selected over a suitable overseas applicant. Gill was dismissed because he did not have a valid work visa. Before the dismissal, the employer fell short of good faith obligations to their employee. The Gill case explains that when employees request assistance in applying for a further work visa, employers acting in good faith looks like:
- A positive duty to be clear in communication
- Letting employees know as soon as possible if visa applications cannot be supported and why
- Communicating what the labour market test process looks like
- Not creating any expectations of certain results
- Consulting with employees about options like applying for other roles
Employers and employees must understand the types of visas, their requirements, and processes to fully know what visa options exist.
It should be clear that employment is subject to employees holding valid work visas and in the case that labour market tests fail, employers cannot support work visas.
Whilst it is not reasonable for employers to support visa applications when the labour market test fails, employers still have good faith obligations to their migrant employees throughout the visa process. Communication about the process, the result of the test and consultation on other options should have taken place.
UVISA is closely watching the overlap of immigration policy with employment law.
Employers should seek advice to avoid similar mistakes and penalties and to fully understand visa application options.