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Employers who forced staff to take leave during the Covid-19 level 4 lockdown will have a mess on their hands when the Christmas lockdown begins, says a labor lawyer.
During the level 4 lockdown earlier this year, many employers asked staff to take annual leave, or supplemented the workers’ pay subsidy with their annual leave, because they were unsure of their future.
But Ros Webby, a partner at Dundas Street Employment Law, said this left many workers without annual leave over the Christmas and New Year holidays.
“Some difficult situations are going to arise due to the knee-jerk reaction of many employers during the lockdown. Employers who asked staff to be absent, illegally in some cases, will regret not thinking about it, ”Webby said.
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The Vacation Law requires the employer and the worker to agree on when the annual vacation should be taken.
If they can’t, the employer could order the worker to take annual leave 14 days in advance.
Webby said employers who forced workers to take annual leave during the lockdown, without genuine consultation, acted illegally.
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Ros Webby, a partner at Dundas Street Employment Law, says the concern is employers closing down and asking staff to take unpaid leave.
“There were some unreliable situations where people were asked to walk away due to Covid-19. You can only compel people to take leave after genuine consultation, consideration of the employee’s wishes, and a 14-day written notice.
“If someone were asked to leave without those things being followed, they would have a good case for reinstating their annual leave.”
Webby said workers who had been left without a license because they were asked to exhaust it could take their leave in advance or leave without pay.
“No employee can be forced to take leave in advance unless there is a specific provision in the employment contract that says’ in case the company closed during Christmas and the worker did not have enough annual leave, the worker agreed to take a license to advance or take leave without pay ‘”.
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The Vacation Law requires the employer and the worker to agree on when the annual vacation should be taken.
E tu’s national union organizer Joe Gallagher said the union was consulting with multiple employers to ensure that staff asked to use up all of their annual leave could take advance leave rather than go unpaid during the Christmas.
“No one should be spending money out of their pocket over Christmas, and decent employers will do the right thing so employees don’t go without pay,” Gallagher said.
But Webby said the concern was that employers would shut down and ask staff to leave without pay, claiming they couldn’t pay them.
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According to the law, employers must pay staff who are willing to work during the Christmas period, even if the business decides not to operate, Webby says.
He said employers were required to pay staff who were ready and willing to work during the Christmas period, even if they decided not to operate during that period.
“The courts will not feel much sympathy for an employer who has exhausted the worker’s annual leave before the closing period,” he said.
“Those who employ the usual contract closure will also have a problem, because they are generally supposed to handle this during the year so that staff can have enough vacation to take.
