Snow Absenteeism Do

There is no provision in the employees’ employment agreements that covers this exact event but there is a provision in our sick leave policies requiring the employee to contact the employer if the employee is unable to work. Do I have to pay the employees who did not come to work?

Answer: This answer is given on the basis there is no provision in the employees’ agreements or in any house policies that cover the situation. The provision governing sick leave could not be extended to cover this situation. In Vector Gas Ltd v Bay of Plenty Energy Ltd (2010) 9 NZBLC 102,874 (SC); [2010] 2 NZLR 444, the Supreme Court said,

“The language used by the parties, appropriately interpreted, is the only source of their intended meaning. As a matter of policy, our law has always required interpretation issues to be addressed on an objective basis. The necessary inquiry therefore concerns what a reasonable and properly informed third party would consider the parties intended the words of their contract to mean”.

Because the basis of an employment agreement is work for pay the general rule is “no work no pay” (New Zealand Engine Drivers’ etc, IUOW v Gear Meat Processing Ltd [1982] ACJ 111 and Miller v Herbert Building and Construction Services Ltd ERA CA197/09, 17 November 2009). In this situation, you (the employer) have no contractual obligation to pay the employees. However, the Employment Relations Act 2000, s 4(1A), imposes a duty of good faith on the parties to an employment relationship and that duty requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative.

In light of the duty of good faith, the employer should meet with employees and discuss the matter with them. The employer should say it wishes to discuss two matters with the employee:

• the employees’ claim for payment for unworked time, and
• a proposed policy dealing with adverse events (including adverse weather)

Payment for unworked time

If the employer intends not to pay for the unworked time it should say so and outline the loss it has suffered.

The employer could (with the agreement of the employee):

• Count the day as annual leave (the Holidays Act 2003, s 19(2), makes it clear that an employee cannot    be required to take annual leave without 14 days’ notice being given).
• Allow the employee to use the day for any time in lieu owed.
• Permit the employees to make up the time in the future.

The employees should be given the opportunity to make any suggestions and the employer should give real consideration to the suggestions. All employees should be clearly told any options the employer is prepared to make available and be given the choice. Note that sick leave can only be taken if the employee, the employee’s spouse or partner, or a person who depends on the employee for care, is sick or injured (Holidays Act, s 65). So the employer should not permit an employee to take the time off as sick leave. Written notes should be kept of what is said and agreed.

Policy

The employer should explain that to avoid this problem in the future it is proposing to introduce a policy to deal with the situation. It should give the employees a copy of the proposed policy and ask for comments on it (comments to be given within a certain time frame). The employer must consider comments made by employees and explain to them why it has, or has not, accepted any suggestions. The introduction of new policies to govern the conduct of employees should be undertaken carefully. The new policy must not impose duties that extend, vary or contradict the employment agreement (New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd (2004) 7 NZELC 97,367 (EC)).