Q: One of our clients terminated an employee 2 weeks ago due to their work visa expiring. All leave liability was paid out. The employee has now regained their work visa, and wants to be reinstated

What are the implications of this regarding their anniversary date – both sick and annual, and their leave accrual that was already paid out?

Is there anything else we need to consider before reinstating the employee to the payroll system

A: There is the following section under the Holidays Act, so it means it is still treated as continuous employment.

85 Presumption that employment continuous if employee dismissed and re-employed within 1 month

(1)

If an employer dismisses an employee and then re-employs the employee within 1 month after the dismissal, the employee’s employment must be treated as being continuous for the purpose of the employee’s entitlements under this Act.

(2)

Subsection (1) does not apply if a Labour Inspector makes a determination that the Labour Inspector is satisfied that—

(a)

the employer acted in good faith; and

(b)

the employer did not act for the purpose of evading his or her obligations under this Act.

Q: Can I also confirm that although the employment remains continuous, the accrual value of annual leave would start at zero, but the sick leave would be reinstated per the balance at termination?

A: There is no such thing as accrual under the Holidays Act (except the 8%) what the section below means if a month later it is their ANN date they would get 4 weeks of annual holiday entitlement at the greater of AWE and OWP when taken.

So yes if the 8% had been paid out starts again and SL is reinstated.