What can I do if my worker has breached Public Health Guidelines​

In video two of our series, Norris Ward McKinnon Associate Rob Davies takes us through what you can do if you believe your worker has breached Public Health Guidelines.

If you require more information on this topic and are a member you can call 0800 327 646 (0800 FARMING) and speak to one of our legal experts. This is a member only service.

What to do if my worker has breached Public Health Guidelines? 

This information sheet focuses on the commonly asked question of what do I do if my farm worker puts my farm bubble at risk by disregarding lockdown rules and protocols?  

Legal framework: 
New Zealand in currently in a national state of emergency with level 4 restrictions in place.  This means that there have been significant constraints put in place on people’s freedom of movement which include requirements that we all stay at home and self-isolating in your “bubble” with social distancing if/when you do venture out.  There are limited exceptions to these blanket restrictions which largely apply to the provision of essential services.  

Dealing with a potential breach by your worker: 

First step is to talk with the worker, hear their response and consider it.  Ask questions.   

  • Where did they go?  
  • Who did they come into contact with?  
  • Were they justified in leaving the bubble? and  
  • Have they compromised the safety of your farm bubble? 

The more information you have, the more informed your decision will be about the risk associated with letting the worker back into the workplace. 

If you are not satisfied that their reasons for leaving the property were reasonable (i.e going to the supermarket or chemist), explain the importance of the farm bubble.  As a PCBU, your health and safety obligations are to take reasonable steps to ensure the safety of everyone and this could be compromised by their actions. 

We also suggest explaining that to be able to be paid as a worker, they must be ready, willing and able to work.  If, by breaching level 4 restrictions the worker is not in a position where they can work for 14 days (or the employer reasonably allow them to work) the options are: 

  1. With the agreement of the parties annual leave can be taken; or 
  2. Leave without pay.  The employee has no entitlement to be paid where it is a reasonably foreseeable consequence of their actions that they are not able to work. 

If the breach is serious or repeated you may need to consider running a disciplinary process.  This will be covered in more detail in another information sheet but in summary: 

  • Put the worker on notice of your concerns. 
  • Give them a reasonable opportunity to respond. 
  • Consider their response. 
  • If you determine that a warning or dismissal is warranted, you need to keep in mind the ‘fair and reasonable test’ for whether the decision is justified. 

If in doubt, feel free to call the 0800 Farming line.