Varying terms of employment and are they willing and able to work?

by | Aug 17, 2020 | Covid-19, Employment Agreements, News & Events

As of 12 noon on the 12th August Auckland went back to Level 3 restrictions and the rest of NZ went to Level 2.  Sadly, the reality is that the likelihood of further outbreaks in the future is high, and the level of government subsidy that will be available will not be unlimited.  As business owners you do need to:

  1. Consult with your staff about any changes to their terms of employment,
  2. You do need to present strong business reasons for any changes that you are proposing
  3. You do need to genuinely listen to your employees feedback about the proposals before making any final decisions. 

Mechanisms to Build flexibility into agreements

The range of options about what you can propose (with justification) can range from 100% flexibility to take employees to zero pay without notice, through to giving a guaranteed level of income (e.g.) we won’t flex you below 50%.
The 2 main mechanisms by which you can build flexibility into your agreements to deal with the COVID situation are:

  • Introducing or varying your Unforeseen Event or Natural Disaster (Force Majeure) clause to ensure it specifically references Pandemics
  • Introducing a lower guaranteed hours clause into your employment agreements.

We recommend that you get us to do a quick review of your employment agreements to see if further changes need to be made to your employment agreements.

New Template to vary terms of employment

Experience has shown that the amount of notice that we will be given about restrictions coming into place is minimal, and certainly not sufficient time to execute a proper consultation process.  As such, many employers are now looking at ways in which they can build further flexibility into their employment agreements. 

I have developed a new template to deal with this consultation process which is now available by clicking on this link.  This is free for members or can be purchased as an individual document for $79 + GST.

Are they willing and able to work?

Sadly the latest COVID 19 restrictions have also created the latest round of employees who are using this as an excuse not to come to work, or not to follow reasonable requests to work from home.

The law states that if someone is WILLING AND ABLE to work then the terms of their employment apply and must be met unless you consult to change those terms of employment. 

The following tries to break down that phrase:

Are they willing to work?
This could be considered as relating to the employee’s choices in relation to the situation.  So, if you have:

  1. work available
  2. which can be done in accordance with social distancing protocols
  3. And there or no other barriers to them working

… but they refuse to work, then they may be considered as not WILLING to work

Are they able to work?
There are 2 key times when the ability to work will be restricted:

  1. Due to the company being closed due to COVID 19 restrictions
  2. Due to the individual requiring to isolate due to COVID 19 factors.  NB the COVID-19 Leave Support Scheme is now available for all employees (not just essential workers) and information can be found at

Assessing the situation and what you can do

As a business owner, many of us are struggling to keep the business afloat, during a period of huge uncertainty.  Government subsidies certainly help, but they by no means cover all the bills, and there is a large shortfall that business owners are having to self-fund.   As such it can be easy to jump to the worst conclusions about your employee’s motivations for refusing available work.  However, now more than ever, you need to ensure that you are making justified and fact-based decisions before you risk breaching someone’s terms of employment.

The following are some steps to help you assess if the concerns being cited are genuine, or if an employee is malingering:

  1. Health and Safety concerns – do you have protocols in place for safe distancing etc?  And, have you clearly communicated these to your employees?
  2. Cross territory travel – if an employee needs to cross the boundary between restrictions zones (currently Auckland V’s non-Auckland) then have you provide them with a letter on company headed paper to assist them with making this “crossing” without having to justify their travel every day?
  3. Refusal to do work from home?  Doing paperwork, reviewing documents etc may not be part of their normal duties, but, provided this is within their skill set and they have the necessary facilities to do this (e.g. access to a computer) then this kind of request would not normally be considered unreasonable.  So a refusal could be considered a disciplinary matter
  4. I have “at-risk people” at home and don’t want to risk cross-contamination.  The ministry of health guidelines layout those people who are at risk so this would be the first step to check if the claim is valid or not.  If you are still unsure of the validity of the claim you may be able to ask for further medical information.  Contact us if this is the case.

You are allowed to push back

Obviously, I have had quite a few calls about this issue, and the reality is that if you push back on those employees who already know that they are “exaggerating” their concerns, they will usually back down pretty quickly.  And for those with genuine concerns then you are able to quickly get into a far more co-operative and honest discussion about how you can resolve issues.  So don’t be afraid to push back, just do so with the understanding that the situation may well be genuine.

HR is NOT scary
Most business owners can get a little scared when approaching a situation like this but if you fully understand the process, then it’s not scary and it’s quite straight forward.

The HRtoolkit has over 88 specific guides and templates and $349 + GST gives you access to all the documents.  You may also want to consider upgrading to our DIY expert package for $129 + GST per month (12 month term) which gives you access to the document library and unlimited phone and e-mail support.

We are here to help

If you have any questions then please call Lisa on 021 741 544

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