A Vodafone memo warning its New Zealand workers they may be “terminated” if stuck in Australia for an “extended” period risks damaging employee relations and creating negative publicity. The new policy comes as New Zealand opens its borders to create a “travel bubble” with Australia, ending a year-long quarantine with its Trans-Tasman neighbours.
Hundreds of quarantine-free flights between the two nations are expected throughout April as family, friends, and colleagues kept apart by the covid-19 pandemic are reunited for the first time in months. But amid the “Love Actually”-esque scenes in airports, Vodafone’s latest travel policy, published internally last week, rankled many of its workers.
“It is strongly recommended that any employee planning an overseas trip discusses it with their people leader before booking flights,” said the memo. “Employees should also understand that if they are prevented from returning to NZ and their home/work for an extended period beyond their original approved leave dates, their employment may be terminated.”
Jacinda Ardern’s government has warned that those planning on travelling between New Zealand and Australia should have contingency plans in case of a covid-19 outbreak. This raises several employment law issues for businesses, including whether an employer can refuse an employee’s leave request due to the travel risk and, if the border does close, whether they must continue to pay the worker who is stranded abroad and cannot work.
Dismissing a stranded employee seemingly goes beyond a company’s “flyer beware” policy, however. Joydeep Hor, founder and managing principal of People + Culture Strategies in Sydney, said that generally speaking, in Australia, as in New Zealand, employers will only be justified in terminating employment if they act fairly and reasonably when doing so.
“The requirement to act fairly and reasonably means that employers cannot terminate employment ‘at will’. That is, a decision to dismiss will only be justified if there are good grounds for doing so, following consideration of the wider context and whether there may be any alternatives to dismissal,” said Hor.
“The law recognises ‘good grounds’ to include circumstances where the employee has engaged in misconduct, where the employee’s position is redundant, or where they are unable to perform their role to the employer’s required standard.”
A ‘one-size-fits-all’ policy to situations where an employee is stranded overseas is fraught with risk
In Hor’s view, Vodafone’s travel-bubble policy – which purports to penalise employees for circumstances that are largely outside of their control – is, on its face, not fair and reasonable, although whether any dismissal is justified depends on the particular circumstances.
“If an employee has been granted leave to travel overseas and is then unexpectedly stranded and prevented from returning, an employer would need to demonstrate that they have exhausted all reasonable options available to them before considering ending employment,” he said. “This would include exploring whether the employee can work remotely, and if not, whether they can use any accrued leave or unpaid leave, for the period they are stranded overseas.”
While an employer is not required to keep an employee’s job open indefinitely, any decision to terminate would be assessed against the standard of what a fair and reasonable employer would do in the circumstances, added Hor.
In a statement to Stuff, Vodafone admitted it “didn’t get the messaging right on this one” and that the multinational telecoms company was “trying too hard to cover all possible scenarios and risks” for its employees.
“A ‘one-size-fits-all’ policy to situations where an employee is stranded overseas is fraught with risk and employers should instead adopt a case-by-case approach,” said Hor, who added that, from a cultural perspective, a travel-bubble policy of this nature would be viewed as “draconian and insensitive” by employees.
“With many people unable to see family for so long, there would be a real risk of adverse publicity and disengagement for any employer pursuing this approach too radically.”