Barbara Buckett and Associates Barristors and Solicitors

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june 2007

when a sickie isn’t a sickie

When our favourite TV weather presenter tells us that the good weather coming will be a good time to take a sickie we know what she means. But a series of Employment Relations Authority rulings suggest it is not a simple matter to deal with an employee who claims to be sick when they might not be.

golfing when on sick leave?

In Wallace v Air New Zealand the company dismissed Mr Wallace after it discovered that he might have played golf on days that he had been on paid sick leave. According to a golf club website Mr Wallace had completed full rounds of golf on the days in question and submitted his scores for handicap purposes. In explanation Mr Wallace suggested that the data on the website might be incorrect because sometimes people submitted score cards incorrectly dated to manipulate the handicap system or that there might have been date errors made when the data was loaded on to the website. He also explained that on two of the days concerned he had been too sick to work but later in the day and approaching the end of his rostered work hours had felt better and decided to play golf to get some fresh air. The Authority noted that at the time Mr Wallace had in close succession lost both of his parents and had been depressed.

In deciding the matter the Authority criticised the process followed by Air NZ and found the company had not openly considered the explanations offered by Mr Wallace. The Authority was critical that the company had not taken into account the impact of the death of his parents on his health. It also considered that when assessing the seriousness of the matter the company had not addressed the possibility that when he called in sick whether he intended to play golf later in the day or whether he was genuinely sick and later recovered enough to go to golf. It was also noted that there had been no history of sick leave abuse and Mr Wallace had managed to accumulate sick leave. The dismissal was found to be unjustified. Air NZ was required to reinstate Mr Wallace and pay him for wages lost from the date of his dismissal through to his reinstatement and $5,000 compensation.

smelt fishie

Continuing the sporting theme the Authority recently considered the dismissal of a man who went on a fishing trip while on sick leave. Mr NcNeill was employed by Solid Energy New Zealand Ltd and was dismissed for falsifying a sick leave claim. Ironically Mr NcNeill in his role as a union delegate was representing a fellow employee alleged to have been absent without leave to go on the same fishing trip. The company later found out that Mr NcNeill had been on this fishing trip but had not disclosed this when he had met with the company regarding the actions of his work colleague.

Mr NcNeill argued that it was not open for Solid Energy to conclude he had made a false sick leave claim and that the company had been influenced by a sense that it had been mislead when he had not admitted to being on the fishing trip when representing his work mate. He said he had gone fishing despite being ill. However there was no evidence that he had been unwell. Mr NcNeill had not been to see a doctor and while others on the trip stated they had seen him take some medication he did not appear to be severely ill. The Authority also accepted Mr NcNeill had been warned about taking unauthorised leave and was aware of the company polices concerning the taking of leave.

But the dismissal was held to be unjustified. The company ‘code of conduct’ provided that in addressing examples of poor attendance it would work with the union representing employees to resolve the problem. The Authority found that there was no evidence that the company had done this in respect of Mr NcNeill. In this regard the company had argued that the behaviour of Mr NcNeill had elevated the seriousness of the matter beyond questions about his attendance record because he had mislead the company by making a false sick leave claim. But the Authority countered this with the view that there is always an element of deception in cases of sick leave misuse.

The dismissal of Mr NcNeill was found to be unjustified because the company had not exhausted the process set out in the code of conduct. However the award of $5,000 and six weeks lost wages was discounted by fifty percent due to the contribution that Mr NcNeill made to his dismissal.

sick leave was not an open right

However, in another case the Authority did take a dim view of sick leave abuse.

Mr Southcombe was employed as a flight attendant by Freedom Air Ltd. He was dismissed after taking sick leave and travelling overseas on the days in question. Mr Southcombe had applied for and was granted annual leave but the leave allowed was insufficient to cover the period of his planned overseas trip. Mr Southcombe then advised Freedom Air that he was sick and provided a medical certificate that coincided with the end of his planned trip. The medical certificate stated that Mr Southcombe should not fly while sick, which was a view supported by the company. Mr Southcombe confirmed that he would not fly without medical clearance. He later received a clearance to fly but failed to communicate this to Freedom Air.

The Authority observed that the entitlement to sick leave was not an open right for employees to undertake whatever activities they like during a period of sick leave. The Authority emphasised that the guiding principle must be that activities undertaken during a period of sick leave must be conducive to recovery and returning to work, and that any activities undertaken should not be a barrier to recovery. Apparently Mr Southcombe’s doctor had encouraged him to proceed with his travel plans to take advantage of a warmer climate to help his recovery. However Mr Southcombe had accepted an element of wrongdoing and the Authority found that this entitled the company to rely on this admission to find the conduct was grave enough to warrant dismissal.

process process process!

These cases highlight the importance of process and ensuring a full and open-minded approach is taken when investigating issues that appear to be blatant examples of breach of trust and dishonesty. That employees do abuse sick leave benefits is recognised in the Holidays Act. The Act allows an employer who suspects sick leave abuse to require the employee to obtain a medical certificate for the period in question, even if the time taken off is less than three consecutive days, which is the threshold that otherwise applies before proof of sickness can be sought under the Act. But if an employer invokes this requirement they must inform the employee as soon as possible, have reasonable grounds to suspect sick leave abuse, and must pay the costs reasonably associated with obtaining a medical certificate. Employers also need to appreciate that a diagnosis based on an examination carried out ‘after the event’ is likely to be heavily reliant on what the patient reports to their doctor about what was wrong with them and there may be little physical evidence of any sickness to assist the diagnosis. More often than not medical certificates also follow a standard form and simply state that the patient was "medically unfit for work" which does not help the employer to any great extent.

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