Employer: Be wary of Pitfall of Immigration Act

Saint Paul, the Apostle, once said in his letter to Thessalonians:

For even when we were with you, this we commanded you, that if any would not work, neither should he eat: Thessalonians 3-10

Work is a sacred duty for all. No men should eat if not willing to work. For Saint Paul, it would’ve not occurred to him that the duty to work would only come with the legal right to work. However, for the immigration authority in Thessalonica, Saint Paul must have meant to say this only to the Thessalonians, and not the Corinthians or Galatians, who were without a proper visa to work in Thessalonica at the time.

Under the Immigration Act 2009, you are committing an offence if you allow any person to work for you when that person is not entitled to do so. Note that work is defined as ‘any activity undertaken for gain or reward’. Your duty has become a positive one, for the law requires you to take ‘reasonable precaution’ and exercise ‘due diligence’ to ensure no one works for you unlawfully. In other words, you cannot say “I am sorry, I didn’t know”.

Work visa label

Note the legal jargons like ‘reasonable precaution’ and ‘due diligence’ used to impose the stern legal duty. These are the words that determine your fate if you are indeed charged with the offence under the Immigration Act. Now that INZ has opened an online visa checking system called, ‘VisaView’, it makes harder for you to argue you have taken the reasonable precaution and exercised the due diligence.

You just want to mind your own business peacefully. Then, be wary of the pitfall behind the stern duty to keep out the unlawful workers. The immigration law doesn’t make your good faith obligations as an employer any less onerous than otherwise it would under the employment law, even for the unlawful workers.

Misconceiving the law can lead to a fatal result. Here we have a recent case involving an unfortunate employer who was ordered to pay more than $30,000 in lost wages and compensation: Ten Hoorn Boer v Reid Research Services Ltd [2012] NZERA Auckland 142.

The employer in this case employed a South African national in an IT position at the company. The employer had a few run-ins with staff over performance issues.

While the staff member in the process of renewing his work visa, the employer made a couple of enquiries to INZ Call centre to find out if the staff member was entitled to continue working. To her surprise, the employer was advised that the staff member was not entitled to work, and she would be in breach of the Immigration Act should she continue to employ the staff.

Daunted or otherwise chanted by this advice, the employer dismissed the staff immediately. Unfortunately for the employer, the advice given by the INZ Call centre was incorrect. As it turned out, the staff member concerned was on a valid interim visa, which allowed him to work until his work visa renewal was being done by the INZ.

The employer argued that notwithstanding the good faith obligations and the procedural duties under the employment law, she had to dismiss the staff to avoid offence of allowing the unlawful employee to continue working …sounds like Catch twenty two?

You might think it was unfair for the employer to be deemed at fault by acting on the assumption that INZ advice was correct. Nonetheless, the Authority found that the damning should lie where it fell. It fell on the employer because the Immigration Act specifically provides that it will not be an offence under the Act to allow the unlawful employee to continue working while sorting out the contractual notice period.

Thus, even if the employer was correctly advised that the staff member concerned was working unlawfully, the employer nonetheless should have informed the staff members of the issue and provided an opportunity to negate the concern, as required under the good faith obligations.

Thus, here comes someone’s hard earned lesson to avoid the pitfall of the Immigration Act.


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