Leave without pay could save the day

As many employers face the possibility of making employees redundant, the question of placing people in a holding pattern of leave without pay for a period of time comes up.  The idea here is that the employee goes on to leave without pay for a period of time in the hope that business will pick up again and the employer will be able to restore them back to their full paid employment in due course.

For employees on work visas, this naturally raises the question: is this an option for a work visa holder?  The answer is: yes, it just might be.

For holders of open work visas the leave without pay option can be used.  However, even for holders of closed work visas, such as Essential Skills and Talent visas, this option may work as a way of preserving the migrant worker’s status in New Zealand.  Many employers of migrant workers that we have spoken to have assumed that a migrant worker cannot go on leave without pay as this would be a breach of their visa conditions.  This assumption is not necessarily correct.

Whilst a person is on leave without pay, they technically remain an employee of that organisation.  Therefore,  they are still “employed” as per the terms and conditions of their work visa.

Lane Neave have been working with a number of clients and liaising with Immigration New Zealand in relation to the possibility of utilising the leave without pay option in order to enable their migrant worker employees to preserve their work visas.  There are a number of complicating factors to be taken into account depending on the specific details of the visa held, expiry date, likely duration of leave without pay etc, but, the current indicators from INZ confirm that leave without pay is a viable option.

This option has advantages for employers and employees alike.  For employers, they are able to retain key employees who understand their business and in whom they have invested in training and developing and who may be difficult to replace when things ramp up again.  For migrant workers being on leave without pay also gives them better options than just being made redundant.  It gives them time to stay in New Zealand without having Immigration New Zealand’s Compliance Team on their case about departing, it gives them the option to potentially be restored to their employment or to seek alternative employment and, importantly, there is the potential to preserve their all-important pathway to residence.

Even if you have already made work visa holders redundant, there is potential to reinstate their employment (on a leave without pay basis) to secure this position for your business and your migrant worker employees.

To discuss how the leave without pay option could save the day for your migrant worker staff please get in touch with our expert immigration lawyers who will be able to advise in detail on the possibilities that leave without pay can offer, whilst still ensuring that you and your employees remain compliant with immigration and employment law.