By Ahvee Ram

Have you got an employee who’s always under the weather with a new illness, injury, or ailment? When they’ve used up their sick leave entitlements, but somehow it doesn’t faze them at all. While you want to be understanding, and trust that they’re not taking advantage, it’s hard to remain positive when the work is piling up and left to fall on your shoulders.

Under New Zealand employment law, an employee is entitled to 10 days of sick leave for every 12-month period after they have completed six months of continuous service.

The law is complex, and the principle of good faith is paramount in these situations. So, how do you manage this?

When an employee is on an extended period of absence from the workplace due to personal illness or injury, this can create considerable uncertainty for a business.

You will be faced with two situations:

  1. where an employee is genuinely sick, but they have exhausted all their leave entitlements, and the amount of leave being taken is causing significant stress on operations; and
  2. where an employee is suspected of taking non-genuine sick leave or sickies.

In the first situation, it’s a well-settled area of law that employers aren’t bound to keep the job indefinitely open for an employee who is unable to perform their role long term. When this happens, the employer will be required to carry out a fair and reasonable medical incapacity process to terminate employment. Medical incapacity is when an employee is no longer able to do their job due to illness or injury.

A process must be followed that requires the employer to carry out a full and fair investigation into the employee’s medical position, seek expert medical opinion from a medical practitioner, and consult with the employee about their well-being and the business’s position. Only after consultation with the employee would it be justified to terminate for medical incapacity.

In the second situation, disciplinary action may eventuate, but you must show that you have taken fair and reasonable steps in obtaining evidence, that you allowed your employee to provide their own proof and you have consulted on the matter with them, before deciding. Pending the merits of individual cases, it may also be reasonable to dismiss an employee for serious misconduct.

Was it genuine or was it fake? The Employment Court decided.

A 2013 case that was brought before the Employment Court provides an example of where an employer was successfully able to dismiss their employee for taking non-genuine sick leave. The facts are:

  • An employee applied for annual leave to attend a sports competition. The employer was hesitant to approve the entire five days of annual leave that had been applied, and therefore only granted three days of leave. When the employer didn’t hear back from the employee, there was a reasonable expectation the employee would be at work for the two days that had been denied.
  • The employee attended work however later contended a muscle injury and took sick leave claiming he required this to rest and recover; this happened at the same time when annual leave was applied.
  • Soon after, the employer became aware of photos that had been posted on social media; photos that showed the employee competing at the sports events during a time when he was meant to be resting and recovering.
  • The employer had reasons to believe that the sick leave wasn’t genuine on the basis that annual leave had initially been denied for the same sports competition.
  • The employer had the weight of evidence suggesting sick leave was falsely taken, including statements from the event representatives regarding the employee’s attendance at the event.
  • A proper process was conducted by the employer which led to the employee’s dismissal.
  • The employee raised a personal grievance against the employer and claimed he had been wrongfully dismissed.
  • The Employment Courts consequently concluded that the employer had reasonable suspicion and was entitled to commence a process alleging serious misconduct. The Courts found that the employee had misled the employer and had taken steps that significantly impacted the trust and confidence that is necessary for the employment relationship; the dismissal was justified.

This case highlights areas of learning; when an employee is sick, they aren’t required to be “home-bound” – it isn’t for the employer to determine an appropriate way for employees to rest and recover. However, if it’s found that the employee is engaging in activities that are obviously not consistent with resting and recovering, an employer may question the genuineness of the illness. Furthermore, if an employee can justify their absence from work with a valid medical certificate, it’s unlikely that these types of medical evidence will be challenged.

If this information has raised any questions for you about leave entitlements or you have another workplace matter, please reach out to our HR & safety experts via our 24/7 Telephone Advisory Service.

Ahvee Ram is an Employment Relations and Safety Consultant at HR Assured New Zealand. He regularly advises and supports our clients with a wide range of workplace and employment issues.