Even in these heightened alert levels, however, employment law offers no automatic rule allowing workers to stay home during emergencies \u2014 a reality that can leave people uncertain and anxious when storms strike. <\/p>\n
Cyclone anxiety for worker<\/p>\n
A Tauranga retail worker spent the weekend glued to weather updates, unsure whether her safety would be put at risk if she had been required to attend work on Sunday.<\/p>\n
The worker, who NZME agreed not to name to protect her employment, said on Sunday morning she texted a work colleague and was told it was \u201cbusiness as usual\u201d.<\/p>\n
\u201cI live alone with my cats, and as the wind picked up, I became really anxious about leaving home and quite concerned about travelling across town for my night shift.\u201d<\/p>\n
A tree down on the main street of Whakat\u0101ne, The Strand, as Cyclone Vaianu hits. Photo \/ Mike Scott<\/p>\n
While weather conditions eased at times, the strengthening gusts of wind made the situation feel \u201cunpredictable and ominous\u201d, she said.<\/p>\n
It was a \u201chuge relief\u201d when her manager sent a group text advising the staff that the store would shut for the rest of the day. <\/p>\n
\u201cMy boss is a family man, and he would never jeopardise our safety and our families\u2019 safety, but not everyone has such a supportive manager or employer,\u201d she said.<\/p>\n
\u201cI\u2019m lucky my boss values our safety, but not everyone is in that position.\u201d <\/p>\n
His message came shortly before a Civil Defence text alert urging businesses in low-lying areas to consider closing or ensuring staff and customers could shelter safely in place if needed.<\/p>\n
She said the experience left her questioning what her legal rights would have been if she had refused to work because of feeling unsafe if the store had stayed open.<\/p>\n
What the law says<\/p>\n
Baywide Community Law Centre lawyer Russell Nye\u2011Wood said New Zealand\u2019s employment law did not have prescribed rules telling every employer what they must do during adverse weather events.<\/p>\n
Under the Employment Relations Act, however, the \u201cduty of good faith\u201d applied to these situations.<\/p>\n
This duty required employers, employees and unions to deal with each other honestly, openly and constructively, and act in everyone\u2019s \u201cbest interests\u201d.<\/p>\n
Under the Health and Safety at Work Act, employers must also ensure a safe environment.<\/p>\n
Baywide Community Law lawyer Russell Nye-Wood. Photo \/ Russell Nye-Wood<\/p>\n
Nye-Wood said a worker had the right to stop work or refuse to carry out work if they believed they would be exposed to a serious health and safety risk from an \u201cimmediate or imminent hazard\u201d. <\/p>\n
However, the worker must inform their employer of their safety concerns early, and both parties must act in good faith by making reasonable efforts to resolve the issue.<\/p>\n
If the issue cannot be resolved, there is the ability to seek mediation. <\/p>\n
Written workplace continuity or emergency management policies were important to \u201ctake the guesswork out of emergencies\u201d both for workers and their employers, he said.<\/p>\n
Employment lawyers urge caution<\/p>\n
Tauranga employment lawyers Jeremy Sparrow and Stevie Shaw, of Holland Beckett, said a worker refusing to work as they believed they would be exposed to a serious risk from an \u201cimmediate or imminent hazard\u201d, must try to resolve their concerns with the business or undertaking \u201cas soon as possible\u201d.<\/p>\n
If issues remain unresolved, the worker may continue to refuse to work if they have reasonable grounds for believing the risk remains serious.<\/p>\n
The legal threshold for refusing work lawfully was \u201chigh\u201d, however, and case law was limited.<\/p>\n
\u201cWe are only aware of one case where the Employment Relations Authority examined this in detail, which involved an employee refusing to attend work over concerns of catching Covid\u201119, with the Authority finding the threshold was not met.”<\/p>\n
Holland Beckett law firm partner Jeremy Sparrow. Photo \/ Supplied<\/p>\n
This included the employee\u2019s statements about the perceived risk not being consistent with the risk being serious, and that the employer had implemented multiple control measures to manage safety.<\/p>\n
The lawyers said similar considerations would likely apply in severe weather events, but acknowledged the difficulty for workers in assessing legal risk in fast\u2011moving situations.<\/p>\n
\u201cFor that reason, workers should exercise caution before refusing to work,\u201d he said.<\/p>\n
Potential consequences for employees who unlawfully refuse to work may include loss of pay and disciplinary action. <\/p>\n
They emphasised that any disciplinary response must still be \u201cfair and reasonable\u201d.<\/p>\n
For a contractor, if the refusal to work was not on reasonable grounds, they may not be paid for any periods they refused to work.<\/p>\n
Depending on the wording of their specific contractor agreement, the business or undertaking may be entitled to terminate the agreement. <\/p>\n
Union view<\/p>\n
Workers First Union general secretary Dennis Maga said the union pushed to include emergency pay protection clauses in collective agreements wherever possible.<\/p>\n
\u201cThe time to negotiate these protections is before a crisis hits,\u201d he said.<\/p>\n
Maga said the union would argue that a worker has the right to decline to attend work if a natural disaster makes their workplace or commute genuinely unsafe.<\/p>\n
\u201cThe Health and Safety at Work Act supports that position.\u201d<\/p>\n
Workers First Union general secretary Dennis Maga. Photo \/ Mike Scott<\/p>\n
On the issue of payment of wages, however, he said the legal picture was more complex.<\/p>\n
\u201cUnder common law, if a worker is willing, ready and able to work but the employer cannot provide work due to flooding, closure or other reasons, the employer is generally obliged to pay normal wages.\u201d<\/p>\n
However, that obligation could be altered by a \u201cforce majeure\u201d clause or other provisions in an employment agreement, Maga said.<\/p>\n
\u201cForce majeure clauses are designed for extraordinary events beyond anyone\u2019s control, such as a cyclone destroying a worksite or road networks being closed under a state of emergency.\u201d<\/p>\n
He said if work was available, but the worker was not willing, ready or able to work, employers may not be obliged to pay wages. <\/p>\n
\u201cBut we would argue a worker should not be financially disadvantaged for declining to perform unsafe work.\u201d<\/p>\n