Severe storms are on the way for New Zealand with Aucklanders in particular told to prepare for worsening weather – so what can HR do if staff can’t make it in or the organisation can’t open up?
Employment lawyer Hamish Kynaston is a partner at Buddle Findlay – he says certain provisions will give employers the right to withhold wages in such situations.
“Some employers will have force majeure clauses in their employment agreement so if something happens like a flood and you’re unable to open then there can be specific clauses that authorise the employer in those instances not to pay and to deduct,” he explains.
However, Kynaston warns that if an employment agreement doesn’t include one of those clauses, then organisations will generally be unable to deduct from staff wages.
“As a matter of general principle, if you don’t have one of those principles, then the answer is no,” he tells HRM. “Wages are sacrosanct really and if the employee was willing and ready to work but, through no fault of their own, the employer is unable to make its premises available, then the employer would be required to pay.”
On the flip side, Kynaston notes that if an employee can’t make it to work because of extenuating circumstances, then there is a potential employers could deduct wages.
“If the employee is just unable to get to work and it’s got nothing to do with the employer, the employer hasn’t caused it and the offices were open, then I think that’s a different story,” he says.
“The employee in that case is not ready and able to work and is unable to provide their services due to circumstances beyond the employer’s control,” he explains. “So the employer in those circumstances probably can legally not pay.”
However, while employers may be legally entitled to withhold wages, Kynaston says it’s a measure rarely taken.
“In my experience most employers do actually pay if it’s for a confined period because they recognise it’s just one of those things and some of them might treat it as leave by agreement but generally they’ll just wear it out for a day or two.”
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