Lawyer: Uni can dock pay but not annual leave

Lawyer: Uni can dock pay but not annual leave

The decision by the University of Otago to dock the annual leave of staff who didn't show up for work the day a gun threat was made was in a legal grey area, an employment lawyer says.

Jennifer Mills, who works for law firm Anthony Harper, says legally wages can be docked but the university can't specifically force employees to take annual leave.

"The university cannot legally, unilaterally and retrospectively determine that that is a day's annual leave that employees should take. If employees were to say 'right, well we agree' or 'we ask you, the university, to pay us annual leave', then that is permitted under the Holidays Act," Ms Mills told the Paul Henry programme this morning.

"The university would be right to pay employees if they consent to it, the university would be outside the parameters of the law if they are to say to the union and members who didn't report to work 'you must take annual leave and we will dock your pay' – that would be unlawful."

A threat to carry out a mass shooting on campus was posted to the online messaging board 4chan, alluding to a 2007 massacre at Virginia Tech.

Ms Mills says despite the threat, the university had met its obligations to provide a sufficiently safe place of work for its employees.

"The university has every right not to pay the staff who didn't turn up for work, they are entitled to rely on the police. The police investigated the matter, they determined that the university was sufficiently safe to be open… there was a strong police presence on campus that day, and in my view the university would have complied with its obligations under the Health and Safety and Employment Act by providing a sufficiently safe work place."

Yesterday Tertiary Education Union organiser Shaun Scott said the move was miserable and mean-spirited, though the university has maintained its position, saying those staff who came to work "provided a visible and calm presence" for students and those who didn't would have their day off treated as annual leave to ensure "overall fairness to all staff".

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