KEY POINTS:
I am here in New Zealand on a work permit. However, the company that applied for the permit downgraded the job offer from the one we originally agreed on.
My question is, am I required to give notice to this company in order to find or be offered another position? How much notice is required and what is the next step regarding my work permit should I be made a new job offer?
I would have to look at your employment agreement to advise you properly about the situation.
Employment agreements usually contain clauses which allow employers to vary an individual's job description/role to a certain degree.
Such clauses may also provide that the employee will be given notice of any substantial change to their job description/role.
If your employer has varied your job description/role to the extent that it is "substantially different" to the role you agreed on under the offer of employment, this constitutes a unilateral variation of the terms and conditions of your employment agreement.
An employer who wishes to alter the terms of an employment agreement in this way must obtain the agreement of the employee concerned.
Unilateral variations to duties can be justified by the employer if they are broadly within the role for which the staff member was employed.
Your employer cannot without your consent alter the terms of the employment agreement to the extent that the role you are now in is substantially different to the role you agreed upon.
An employee has to consent to a substantial variation of the terms and conditions of their employment agreement unless there is a clause which allows an employer to do this.
If your employer has varied your role substantially and there is no provision for it in your employment agreement, and you have reached a point where you want to resign, then you may be able to raise a personal grievance based on constructive dismissal.
I recommend that you speak to your employer about your concerns first before resigning.
With respect to the work permit issue, if you leave employment and do not obtain other employment you have an onus to inform Immigration New Zealand of the change in your circumstances.
Immigration New Zealand may revoke your permit so you should apply for a new permit immediately - such as a visitor's permit if you have not found a new offer of employment.
If you find a new offer of employment while you are currently employed, you will need to apply to Immigration New Zealand to vary the conditions of your permit.
You will need evidence of your new job offer with this application.
A fee of $180 must accompany the application for variation of conditions to your work permit.
I recommend that you approach your employer and discuss the issue of the variation of your job description.
If the situation cannot be resolved you should look for a new offer of employment while working in the role you are currently in.
You should contact an employment law specialist/lawyer and Immigration New Zealand immediately.
