The answers should be easier – a call for employment law legislation dealing with situations like pandemics

If three judges of the Employment Court are unable to agree on the employment law obligations of an employer in the context of a pandemic, how can ordinary employers be expected to know? I am calling on the government to legislate employment law obligations for force majeure events. A force majeure event is often described as ‘an act of God.’ It is when unforeseeable circumstances prevent a party from fulfilling a contract, for example, because of a natural disaster, pandemic, or government lockdown etc. The Covid-19 pandemic was not the first pandemic to reach our shores and will not be the last. Furthermore, in Aotearoa, we see our fair share of natural disasters, such as floods, earthquakes, and volcanic eruptions.  

Nine months after the commencement of lockdown in Aotearoa, the Employment Court decided the first covid-19 related legal proceedings to come to the Court (Gate Gourmet New Zealand Limited and Ors v Sandhu and Ors [2020] NZEmpC 237). Even the full bench of the Employment Court (three judges, when there is usually just one) was split. The key question before the Employment Court was: whether the employer, Gate Gourmet, was obliged under the Minimum Wage Act to pay the minimum wage to its employees, who were engaged to perform work but were not actually working.

The decision of the majority was that, if the employees were not actually working, the Minimum Wage Act did not apply; therefore the minimum wage was not payable and the Act was not breached by non-payment. The view of the minority was that, if the employees were engaged to perform work under their terms and conditions of employment, the Minimum Wage Act applied and the minimum wage was payable, regardless of whether the employees were actually working. In making its decision, the Employment Court heard legal arguments from at least six reputable employment lawyers and delivered its decision two months after hearing those arguments. Clearly, these questions are not easy ones to answer and, in my view, employers should have access to more guidance on such issues in the form of employment legislation.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.