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Failure to return to work

Updated: Jun 12, 2020

With the likelihood of New Zealand moving to Alert Level 2 on 12 May 2020, one question that has confronted a number of employers is "what can I do if my staff are not prepared to come back into the office?"

This is a great question that deserves some consideration.

First, the employer needs to understand why the employee is not prepared to come back into the office. Is it because they have become accustomed to working from home? Or is it because they mistakenly believe that because they are receiving the Government's Wage Subsidy, that they don't have to return to work? The reason given will dictate the response, you as employer, need to provide.

Legally, an employee can only stop work or refuse to come back into work if they have a genuine reason based on reasonable grounds that returning to work would expose them, or anyone else, to a serious risk to their health and safety from an immediate or imminent hazard.

The employee is obliged to inform their employer of the immediate or imminent hazard and what risk that poses for the employee so that the employer has a reasonable opportunity to resolve the issue with the employee. Only if the employee still reasonably believes, despite the employers actions to eliminate or minimise the risk, that they (or another person) would be in danger, would the employee have a legal reason for not attending work.

Worksafe NZ has a list of the obligations for both employees and employers in relation to ensuring the workplace, under COVID-19, is a safe environment to work in. Having a safety plan, as is required under Alert Level 3, is a way the employer can demonstrate to their employees that the workplace is safe. It is recommended that employers involve their employees in developing and understanding the contents of their safety plan.

If an employee unreasonably refuses to return to work, whether at their normal place of work or from home, the employer is entitled to take appropriate action. In considering what is appropriate, employers need to keep in mind the employment agreement that applies to the employee. If the employment agreement has an abandonment provision, then you may be able to rely on this if the employee stops or has stopped communicating with you. If the employee is communicating with you and still refuses to return to work without justifiable reason, then you may be able to place them on leave without pay until such time as they comply with the lawful and reasonable request to return to work.

Before taking this step, it is recommended that you inform the employee of the consequences should they not return to work so that the employee is fully informed of what action may be taken should they continue to be unreasonable in their refusal to return to work.

Be open to hearing the employee's explanation. The following are three examples of potential responses from an employee and how you might respond:

  • Have they simply become accustomed to working from home and want to continue with that arrangement? If so, you need to give this consideration under the Flexible Working Arrangement provisions of the Employment Relations Act 2000.

  • Are they caring for someone who is sick or injured? If so, ensure you comply with sick leave provisions in their employment agreement in respect to sick leave for dependents.

  • Are they are vulnerable person, under COVID-19, with an underlying pre-existing condition, that is not able to be fully addressed through normal measures outlined in your safety plan? If so, you may need to consider a specific change to either accommodate the employee's concern or allow them to continue to work from home where that is practicable.

At the end of the day, if your employee simply believes they don't need to return to work while being paid the Government Wage Subsidy, this is not a valid or lawful reason for refusing to return to work. The Wage Subsidy is not a "free paid holiday." If the employee falls into this category, as stated above, they may face being placed on leave without pay as well as being subject to disciplinary action for failing to follow a reasonable and lawful instruction.

Employers need to keep in mind their good faith obligations in respect to issues arising under COVID-19. The obligation to be communicative and responsive to employees remains in place. This obligation also applies to employees, meaning an employee cannot just ignore and not respond to any communication or requests from their employers.

Before taking any formal action against an employee, always seek professional advice on the specifics of the situation to ensure that you follow the correct procedure for responding to the employee's behaviour. Remember that

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