Buckettlaw thinks not,
BuckettLaw recently published a post about the risks of employees traveling to Australia under the new trans-Tasman bubble. So following Vodafone’s recent implementation of a policy on personal travel to Australia which warns workers that their employment “may be terminated” if stranded by changes in the bubble, we have more thoughts.
The length of time the employee has to be stranded to trigger the policy is open-ended. So, stranded for certain days will be justified; particularly when there is light at the end of the tunnel and /or viable options and contingencies?
Employers are legally required to act fair and reasonably in the circumstances and to comply with the Holiday’s Act. Policies are inferior to the law they cannot trump.
The Act says employers and employees should agree to when annual holidays are taken, and an employer cannot unreasonably deny a request to take annual holidays.
Dismissing for not so unexpected circumstances which are beyond the employees control sets a dangerous precedent and one which the employment institutions are very unlikely we suggest sanctioning as being fair or reasonable.
Circumstances that may be reasonable for an employer to deny leave requests often include being short-staffed or it being in a busy season of the year but once the leave has been approved and the circumstances are known, employers in our view share the risk and are obliged to accommodate and/or look to contingency plans which balance the competing needs of personal and business in terms of the rights of flexible working hours and arrangements.
It is reported that the new Vodafone policy says “it is strongly recommended that any employee planning an overseas trip discusses it with their people leader before booking flights.” This seems lawful and wise given that an employee should not assume leave will be granted. Though the policy goes onto say, “Employees should also understand that if they are prevented from returning to NZ and their home/work for an extended period beyond their original approved leave dates, their employment may be terminated.” This is where BuckettLaw says things become murkier and greyer rather than black and white. It is a case of employer beware. Reinstatement is still the primary remedy.
Then there are health considerations. A fair proportion of the current travel is to alleviate health issues that have arisen from the bubble isolation and detachment from family.
Isn’t Vodafone being short-sighted in classing this travel as a luxury choice when it benefits from happy productive employees who have been able to break the curse of isolation and alienation from family and friends to return their health to optimum and be better employees for it?
Being stranded is a risk we all take and share in this Covid-19 world.
Good employers are perhaps not so myopic as Vodafone. It is a balancing exercise in this still not pandemic-free world.
We suggest a better approach is for employers to negotiate with employees what will happen if they become stranded. If an employer does not want workers caring for dependent children at the same time as working, then they might agree to extra unpaid leave if the worker becomes stranded. There are still mutually acceptable options. One size does not fit all the circumstances. Threatening those who take leave with risk is patently not a just approach and why now. All holiday leave is fraught with risk. This is the natural environment. Conditional leave is just plain wrong and unfair.