Do you remember the original Covid-19 Lockdown when all of New Zealand was forced to stay home for nearly eight weeks?
Many employees throughout New Zealand were forced by their employers to take Annual leave.
One employer who did this was Cater Holt Harvey. A number of employees challenged the decision. Due to its importance the case was transferred from the Employment Relations Authority to the Employment Court.
The Employment Court released their decision on 15th August 2022 and is likely to be of interest to thousands of employees through the country who were forced to take annual leave during Covid 19 lockdowns.
The Carter Holt Harvey workers took action against their employer after Carter Holt Harvey forced their employees to take eight days leaved during the nationwide lockdown announced by the New Zealand Government.
You will recall the Government announced on the 23rd March 2020 that we were moving into a Level 4 lockdown in two days time.
All employers in New Zealand had to scramble and work out what to do.
Imagine the logistical difficulties for a company the size of Carter Holt Harvey with the large number of employees they had to deal with.
Carter Holt Harvey elected to pay their employees from the 26th March 2020 to the 8th April 2020 but from the 9th April 2020 to the 22nd April 2020 they required their employees to use eight days leave.
They simply sent an email announcement out to all their employees who had a work email address.
For the employees that they didn’t have a work email address, they used an instant messenger system that they had and sent out a brief mass text.
They also placed the announcement on noticeboards at their premises.
The Employment Court considered Carter Holt’s actions in the context of their obligations under the Holidays Act.
In particular, Section 18 (3) for the Act says,
“when annual holidays are to be taken by the employee, it is to be agreed between the employer and the employee.
And
Section 19 (1) of the Act says
If the employer and employee are unable to reach an agreement.
Then an employer may require an employee to take annual holidays.
Hovering over those sections is the requirement of both the employer and employee to deal with each other in good faith.
What the Employment Court said was that trying to reach an agreement involves consultation.
Consultation essentially means proposing an agreement to their employees, allowing the employees to consider that proposal and the employer then considering any feedback from the employees
This must occur before the employer can conclude the parties are unable to reach an agreement.
Only then can the employer require the employee to take annual leave.
It is likely there are a lot of employees throughout New Zealand who were treated similarly to the Carter Holt Harvey employees.
This decision now enables those employees to ask for their leave to be credited back.
If you would like some assistance with this process, contact our employment team now.
