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Employment Court Rules on Sick Leave Abuse Case

Written by Glenn Finnigan, PARTNER on May 7th, 2013.    


Have you ever taken a sickie, thinking this is no big deal let alone something that you might get fired for?

Well, think again. The Employment Court has just confirmed the right of an employer to dismiss employees who take sick leave without there being a genuine sickness/injury.
The case involved Mr Taiapa who had a passion for Waka Ama. Mr Taiapa had been deeply involved in the sport even coaching several teams.

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He wanted to attend the New Zealand Secondary School Waka Ama Championships for 5 days from 28 March and had applied for leave over this period. At the time the leave was requested a different reason for wanting the leave had been given.

Mr Taiapa’s employer didn’t wish to grant the full period of leave.  But as a compromise offered a period of 3 days leave from 30 March. Some of this leave was to be leave without pay due to the fact that Mr Taiapa had overdrawn his annual leave entitlement.
Prior to 28 March Mr Taiapa had not responded to this compromise offer. So the employer was expecting Mr Taiapa to be at work for the 2 days prior to the period of leave the employer was willing to allow.
Mr Taiapa attended work on 28 March but left mid-morning telling the employer’s Operations Manager he was suffering from a calf injury and had seen his Doctor about it the preceding Friday. He said that his doctor had directed that he take 2 days sick leave.
Later that morning Mr Taiapa left Gisborne with some family members to travel to the Waka Ama Championships in Rotorua.
Mr Taiapa’s Manager later saw a photograph posted on Facebook of Mr Taiapa that had been taken at the Waka Ama event. This triggered the Manager’s recollection of a letter that she had seen stating that Mr Taiapa and his partner would be accompanying two competing Waka Ama teams to the Championships in Rotorua that year.
Mr Taiapa consulted his GP on 4 April and obtained a medical certificate stating that he was unfit for work from 28 March until 7 April. As is typical with such certificates the reason for the medical unfitness was not disclosed.
Mr Taiapa’s employer investigated. Mr Taiapa offered alternating explanations for his absence and Mr Taiapa and his partner (representative) challenged the entitlement of the employer to go behind his explanations and the medical certificate.
Following the investigation the employer held a disciplinary process into the concerns it had about the genuiness of Mr Taiapa’s sick leave. The employer wanted proof of his visit to his doctor on 25 March and further information from his doctor about the nature of the illness/injury covered by the 4 April medical certificate.

The disciplinary process involved two meetings. At the second Mr Taiapa claimed (for the first time) that his injury had been caused differently from how he had previously explained to the employer’s Operations Manager.
Mr Taiapa was dismissed for serious misconduct, the employer concluding that the sick leave had not been genuine, that Mr Taiapa had misled and deceived the employer and that this had caused a loss of trust and confidence in him.
Mr Taiapa lost his case in the Employment Relations Authority and appealed to the Employment Court. There he argued that an employer should not be permitted to dictate where a sick/injured employee recuperates by dismissing the employee for travelling to and recuperating in  another  place.  This argument Mr Taiapa said breached the “right of free movement within New Zealand” under the New Zealand Bill of Rights Act.
This argument was rejected. The Court said that the New Zealand Bill of Rights Act didn’t apply. But the Court did accept as a matter of principle that employers cannot dictate where an employee recuperates from or takes their sick leave. The Court said that the employee in this case had been dismissed for what the employee had been doing during the period of sick leave not where the sick leave had been taken. The Court said that Mr Taiapa’s activities were reasonably held to not be consistent with recuperation from a genuine illness.
Mr Taiapa also argued that he had been unwell in a “broad sense” at the time because of gout and upsetting events affecting members of his immediate family that had affected him adversely. He said that he had been reluctant to disclose these matters to the employer and felt they were “his business alone”.
The Court responded to this argument by concluding that if these were factors that were in play then the employer being unaware of them could not be criticised for not having taken account of them.
The Court confirmed the Employment Relations Authority decision that Mr Taiapa had been justifiably dismissed.
The Court emphasised the importance of trust and confidence between the employer and employee in the use of sick leave whether paid or unpaid. The Court stated that the deliberate misuse of sick entitlements could constitute serious misconduct depending on all the relevant circumstances.
This was an unusual case in that the employer did have a reasonable basis for believing the sick leave had been misused and that the medical certificate was not reliable.  For example because of:

  • The absence of a response to the compromise leave offer the employer had made.

  • Coincidence of the time off with the Waka Ama Championship, the leave having initially been requested as annual leave.

  • The Facebook photograph.

  • The different explanations for the absence.

These suspicions justified the employer seeking the further information it sought and telling Mr Taiapa that if this information was not forthcoming then the employer would conclude its suspicions were well founded.

What are the lessons from this case?

Mr Taiapa’s decision  to attend a personal recreational event without his employer’s approval/leave proved very costly for him.  The case does show:

  • That employees do risk dismissal if they take “sickies”.

  • Employers can go behind a medical certificate in certain circumstances even asking for clarification from the Medical Practitioner of the reasons for the certificate where they believed that sick leave has not been taken for genuine purposes.

Jackson Russell provides service and assistance to both employers and employees on all aspects relating to employment law. If you need advice or assistance on a matter involving sick leave or any other employment issue, please contact our employment law specialists.

The information contained in this publication is of a general nature and is not intended as legal advice.  It is important that you seek legal advice that is specific to your circumstances.
All rights reserved © Jackson Russell 2013

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