If an employee meets the criteria and gives the right notice, the employee must be able to take leave from, and return to, the same job unless the employer can prove that they cannot keep their position open during periods greater than four weeks.
To prove the employer can’t keep the position open, they must establish that it’s not 'reasonably practicable' to put in a temporary replacement because of the key nature of the position or because there’s a redundancy situation. In working out whether a position is key and temporary replacement is not reasonably practicable each case is decided on its own merits, considering things like the size of the employer's business, and the training period or skills required in the job. If the employer fills the position temporarily, they must let the temporary employee know in writing that they’re employed on a temporary basis in place of an employee who is on leave under Part 2 or 3 of the Volunteers Employment Protection Act 1973 and that the employee on leave might return to work early.
If an employer can prove that the job can’t be held open because it’s a key position, the employer is obliged to give the employee preference over other applicants during a period of 26 weeks (period of preference), beginning with the date on which the leave ends, for any position that is very similar to the one the employee previously held.
War or emergency
Employees who are members of the reserve forces and are called out for continuous service either in NZ or elsewhere and who, at the time of the Proclamation, were employed, are entitled to leave if they’re employed for at least 10 hours a week. Their leave starts on the day they’re called out or earlier if the employer agrees.
The employee must, as soon as practicable after they know they might be called out or are called out, give notice in writing to their employer saying:
- that they’re called out (or might be called out)
- that they do or don’t want to take leave under Part 2 of the Volunteers Employment Protection Act 1973
- if they do want to take leave, the start date of the leave, how long the leave will be or if they don’t know, then a statement that they’ll let their employer know in writing when they find out. If the length of leave changes later, the employee must let the employer know in writing as soon as practicable.
Special service in a situation of national interest
Employees who are members of the reserve forces and are called out for continuous service either in NZ or elsewhere and who, at the time of the Proclamation, were employed, are entitled to leave if they’re employed for at least 10 hours a week. Their leave starts on the day they’re called out or earlier if the employer agrees.
The employee must, as soon as practicable after they know they might be called out or are called out, give notice in writing to their employer saying:
- that they’re called out (or might be called out)
- that they do or don’t want to take leave under Part 2 of the Volunteers Employment Protection Act 1973
- if they do want to take leave, the start date of the leave, how long the leave will be or if they don’t know, then a statement that they’ll let their employer know in writing when they find out. If the length of leave changes later, the employee must let the employer know in writing as soon as practicable.
Employees notices when an employee requests leave
1. If an employer gets a notice that an employee wants to take one of these types of leave, they have to give the employee a notice in writing within 21 days stating:
- whether or not the employee is entitled to take leave (and if not, why), and
- that until the end of the employee’s leave, their position can or can’t be kept open, and
- if it can’t be kept open, informing the employee that they can dispute this and they will be given preference over other applicants for any vacant position substantially similar to the employee’s position for a period of 26 weeks (period of preference) starting at the end of their leave
- more information about the law for emergency and wartime service and national interest service.
2. Within 21 days of the employee going on this leave, their employer must give the employee another written notice stating:
- the date that the employee’s leave ends, and
- if their job is being kept open, the date that they’ll need to return to work (the next working day after the end of the leave), and the employee's rights and obligations, or
- if their job isn’t being kept open, the 26-week period of preference and the employee's rights and obligations.