The rules at work don't change when the earth begins to move

In the case of a natural disaster, like an earthquake, the onus is on the employer to establish the work environment is ...
DEREK FLYNN/FAIRFAX NZ

In the case of a natural disaster, like an earthquake, the onus is on the employer to establish the work environment is safe and if not take appropriate steps to manage this situation.

COLUMN: The recent earthquakes and ongoing seismic activity have created uncertainty and disruption, but what does this mean for your employment if you are an employee?

Certainly, it does not mean your employment agreement can be disregarded, and the rules changed.

The overriding duty of an employer and employee to deal with each other in good faith remains.  At times like this, it is even more important.

The health and safety of employees is paramount.  The overriding principle of the Health and Safety at Work Act is that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare, from hazards and risks arising from work.

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The onus is on the employer to establish the work environment is safe, and if not take appropriate steps to manage the situation.

Employment law will not be done away with because of earthquakes.  The same rules still apply to the taking of annual leave and sick leave.

The employer can require the employee to take annual leave, but to exercise this option the employer must comply with the law, which requires a 14-day notice in writing.

Of course if an employer and employee agree, the notice period can be shortened.

If, as an employee you have an abandonment clause in your agreement, all the rules still apply before the employer can give effect to such a clause.

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If you have not been able to attend work because of the earthquakes the employer will not be able to rely on this to dismiss you.

If you are ready and willing to attend work, but are unable to, generally the employer has a duty to meet your normal pay.  Some agreements may consider this situation and have a "force majeure" clause.

Such a clause takes effect when there has been an earthquake or some other natural disaster, for example.

An employment agreement with a force majeure clause means neither party will be liable to the other for any failure to perform any obligations in accordance with the terms of the employment agreement, in the event of a force majeure.

Earthquakes affect everybody differently.  There is no one solution to employment problems that will fit all.  The importance of both employees and employers acting in good faith cannot be underestimated.

Unique problems and issues will require unique solutions, with a flexible and pragmatic approach, remembering minimum legal entitlements will still apply and the terms of individual employment agreements cannot be varied without agreement of the employee.

If this article has raised some questions for you in regard to your employment situation, Community Law Marlborough can provide assistance and is only a phone call away on 0800 266 529 or 03 577 9919.

- Tracey Hewitt is a caseworker with Community Law Marlborough

 - The Marlborough Express

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