Immigration Service not required to consult original employer of overseas employee about new job

Ombudsmen Act 1975
Related legislation:
Immigration Act 1987
Legislation display text:
Ombudsmen Act 1975; Immigration Act 1987
Hon Anand Satyanand
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Employee resigned from business which had recruited him from overseas—business knew employee was working for another company but was concerned that it had not been advised of this situation, given the original employee’s obligations for maintenance of person while in NZ—Ombudsman found Immigration Service not obliged to consult with original employee in this situation and the person was in NZ lawfully—Immigration noted original business’s concerns and agreed with the Ombudsman that it would, as a matter of fairness, advise the original business that it was no longer required to be responsible for either the maintenance of the employee or his repatriation, should that prove necessary

A business recruited an employee overseas, and brought the person to New Zealand. The employee was granted a work permit to work for the specific business. During the term of the work permit, the employee resigned. It later came to the attention of the business that the employee was going to work for another, similar business. In order to do so lawfully, the employee would have needed a change to the conditions of the work permit that had been granted, to allow him to work for the other business.

The original business contacted the New Zealand Immigration Service (NZIS) raising concerns at the situation. The NZIS noted them but, due to what it saw as privacy issues, the NZIS was only able to advise the business that the employee was in New Zealand lawfully, and that any disputes or contractual matters between it and the employee should be pursued through the courts.

The original business complained that it was unreasonable of the NZIS not to have consulted it in respect of its former employee’s change in employment. It pointed out that it had incurred the cost of recruiting the employee overseas and bringing him to New Zealand, and had given undertakings to be responsible for the employee during his time in New Zealand and also to be responsible for his repatriation to his home country should that prove necessary.

In reporting on the complaint, the NZIS advised that there is no requirement in government policy for it to consult with a previous employer in a case such as this. It explained that it is not part of its role to become involved in disputes between employers and employees. It was said that recourse is available to the Employment Tribunal and the Employment Court in such cases. The NZIS noted that any business can suffer severe disruption if key personnel who are difficult to replace leave. The same risks are faced by employers recruiting people from overseas who have the right to reside in New Zealand and do not need work permits. It noted that there is the same need in all cases to ensure terms of employment are sufficiently competitive to retain staff.

In considering the merits of the complaint, it was noted that Government policy does not require consideration of issues such as inconvenience to a previous employer, or the expense incurred by a previous employer in bringing a person to New Zealand, in determining whether to grant a work permit to an applicant. The policy is focused on whether a potential employer is able to fill the position offered with a suitably qualified and experienced New Zealand citizen or resident, and thus whether there is a genuine need to recruit a suitable person from overseas. The question as to whether to grant a temporary permit to any person is a matter for the discretion of the appropriate immigration officer in terms of section 9(1)(b) of the Immigration Act 1987. In general, it could not be said to be unreasonable for the NZIS to take account of government policy in processing a temporary permit application. It was accepted that it was not appropriate for the NZIS to become involved in employment disputes, and that it was reasonable for the NZIS to approve an application for a work permit if that application met the requirements of government policy. In this case, the view was formed that it was not unreasonable for the NZIS not to have consulted the original business.

However, it was noted that the original business had raised valid concerns about its responsibility for the employee’s maintenance in New Zealand and, if necessary, repatriation. It was therefore suggested to the NZIS that it would be useful, as a matter of fairness, for it to advise the original business of the current position in this respect. As a result, the NZIS agreed to inform the original business that it was no longer considered responsible for either the maintenance of the employee or his repatriation, should that prove necessary.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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