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employment

Leave for military or emergency service volunteers

Key Takeaway

New Zealand law protects employees who volunteer for military or emergency services. The Volunteers Employment Protection Act 1973, alongside other legislation, requires employers to grant leave for such service and generally ensures job protection and reinstatement. Employers are typically not obligated to pay wages for time spent on volunteer duties.

Leave for Military or Emergency Service Volunteers in New Zealand

New Zealand law provides specific protections for employees who volunteer for certain military or emergency services, ensuring they can undertake their duties without jeopardising their employment. The primary legislation governing these protections is the Volunteers Employment Protection Act 1973, supported by provisions in other relevant statutes.

Scope of Protected Volunteer Service

The law covers a broad range of volunteer services. An employee who undertakes 'service' is protected. 'Service' is defined to include various roles within:

  • The New Zealand Defence Force (including the Army, Navy, and Air Force Reserves).
  • The New Zealand Police.
  • Fire and Emergency New Zealand.
  • Civil defence emergency management activities.
  • Organisations providing aid, such as the New Zealand Red Cross or St John Ambulance, when responding to an emergency or disaster.
  • Approved search and rescue organisations.

[Source: Volunteers Employment Protection Act 1973, s 3]

Right to Leave for Service

An employer must grant an employee who is a volunteer in one of the specified services leave of absence from their employment to undertake that service [Source: Volunteers Employment Protection Act 1973, s 4]. This obligation ensures that volunteers can participate in training, emergencies, or other duties required by their service organisation.

Similarly, specific legislation reinforces this for particular services:

  • An employer must not dismiss or prejudice an employee because they are a member of the Reserve Forces [Source: Defence Act 1990, s 88].
  • An employer must not terminate an employee's employment or prejudice them in their employment because they are a volunteer with Fire and Emergency New Zealand and are attending or performing duties relating to an emergency or training [Source: Fire and Emergency New Zealand Act 2017, s 27].
  • An employer must not terminate an employee's employment or prejudice them because they are a civil defence emergency management volunteer and are performing duties under the Civil Defence Emergency Management Act 2002 [Source: Civil Defence Emergency Management Act 2002, s 103].

Remuneration During Leave

Generally, employers are not legally required to pay an employee their wages or salary for time spent on volunteer service [Source: Volunteers Employment Protection Act 1973, s 4(4)]. However, an employment agreement may include provisions for paid leave in such circumstances. Employees should refer to their individual employment agreements or workplace policies regarding remuneration during volunteer service.

Reinstatement and Job Protection

Upon completion of their service, an employee has a right to be reinstated by their employer [Source: Volunteers Employment Protection Act 1973, s 5(1)]. The employer must reinstate the employee in the position they held immediately before commencing service, or in an equivalent position. The terms and conditions of employment must be no less favourable than if the employee had not undertaken service [Source: Volunteers Employment Protection Act 1973, s 7].

To qualify for reinstatement, the employee must:

  • Apply to the employer for reinstatement within one month of completing their service.
  • Be available and fit to undertake the work [Source: Volunteers Employment Protection Act 1973, s 6].

If an employee is dismissed within six months of being reinstated, the employer must prove that the dismissal was not due to the employee having undertaken service. If the employer fails to prove this, the dismissal is presumed to be on account of the service [Source: Volunteers Employment Protection Act 1973, s 8]. This provision provides an important layer of job protection.

Dispute Resolution

If a dispute arises concerning an employer's obligations or an employee's rights under the Volunteers Employment Protection Act 1973, either party may apply to the Employment Relations Authority (ERA) for resolution [Source: Volunteers Employment Protection Act 1973, s 10]. The Employment Relations Authority (ERA) is an independent body that investigates and determines employment relationship problems. The ERA aims to resolve disputes fairly and promptly.

Under the Employment Relations Act 2000, all parties to an employment relationship must deal with each other in good faith, which involves being responsive, constructive, and communicative [Source: Employment Relations Act 2000, s 4]. An employee who believes they have been disadvantaged or unjustifiably dismissed due to their volunteer service may raise a personal grievance [Source: Employment Relations Act 2000, s 103]. A personal grievance is a claim by an employee that they have been wronged by their employer in a way that the law allows them to complain about, such as unjustified dismissal or disadvantage.

When to Seek Independent Legal Advice

Navigating employment law, particularly when volunteer service is involved, can be complex. Individuals or employers seeking clarity on specific situations, interpretation of employment agreements, or guidance on dispute resolution are advised to contact relevant official bodies such as Employment New Zealand or consult with a legal professional. Free advice is also available from Community Law Centres.

Key Resources