The Trans-Tasman bubble opened, paused, opened and is now closed again and New Zealanders have been trying to get home during the 7 day window allowed by the New Zealand government. So from an employment law perspective, what happens if an employee gets stuck in Australia for an indefinite period of time?
If you’re an employee?
The answer to this question depends largely on your individual circumstances i.e. your employment agreement and accrued leave entitlements.
Employees should ensure they communicate with their employers well in advance of their planned overseas travel and discuss contingency plans if a lock-down did occur. For example, an employee may agree to take their laptop with them so they could operate remotely if required. An employee with no capability of remote work may ask the employer if the worst happens, that the employer place them on unpaid leave for the duration that they can’t get back to work.
In my view, employees need to be aware that there is no obligation on an employer to keep your job open indefinitely once you have used up your leave.
If you’re an employer?
From an employer’s perspective, there are some precautionary measures that could be taken. Employers should draft policies for all staff which set out that any non-work related international travel which results in the employee being unable to return to work, may result in the employee’s job being terminated.
Employers and employees should have a clear understanding around what would occur if the employee gets stuck overseas.
Unfortunately, it may be the harsh reality that under these circumstances, an employer is simply unable to afford keeping an employee’s role open. Employers are not expected to hold jobs open indefinitely for employees who are unable to perform their role due to medical reasons. Arguably, the same line of reasoning will apply here. If it comes to the point where employment could be terminated due to an employee being stuck overseas, employment law principles will still apply and a fair and reasonable process in all the circumstances must be undertaken.
As always, it is important both employees and employers act in good faith at all times and keep communicating before an employee travels and whilst they are overseas.
If you have any questions, give us a call and talk to one of our friendly employment team.
This article was updated on 26 July 2021.
