Sick, Not Sick

Usually, a genuinely sick employee is easier to manage than one you suspect of ‘trying it on’. When someone is genuinely unwell, they are open and honest with you and provide you with the information you need to make decisions and plan for cover, your ability to manage and be understanding is often extensive. Most employers go beyond their legal obligations to try to support a sick employee.

There are two leading cases, with different outcomes, that addresses the dismissal of an employee who is believed to have taken sick leave when they were not sick.  These two decisions are:

1. Taiapa v Te Runanaga O Turanganui A Kiwa Trust
2. Wallace v Air New Zealand

The Taiapa decision

This decision was in 2013 and is important for a number of reasons (not just because it went all the way to the Employment Court).   Mr Taiapa was very active in waka ama. He asked for 5 days annual leave to attend a waka ama event. He had no annual leave entitlement owing.  The five days leave was declined, however he was offered the last three days of the request as a compromise. Mr Taiapa didn’t respond to this so the employer expected him at work on the Monday in question. He did turn up, however shortly after arriving he told his manager he had a calf injury and a medical certificate stating he was unable to work. He left work and travelled with his family and friends to the waka ama event. Photos were posted on Facebook of Mr Taiapa while he was there, a colleague saw him and a representative from the event provided a letter confirming Mr Taiapa’s attendance. On his return to work the employer initiated a disciplinary investigation.

Mr Taiapa changed his explanation for his absence a number of times through the investigation,  was reluctant to engage in the process, refused to provide medical information the employer requested and claimed the employer had no right to know details of his sickness or the location of where he convalesced during his ‘sick leave’   The employer dismissed him.

Mr Taiapa relied on the New Zealand Bill of Rights Act 1990 which affirms citizen’s rights of movement within New Zealand. However, the Employment Court upheld the dismissal. It found that Mr Taiapa had misled, deceived and refused or failed to co-operate with the employer to the point where the necessary trust and confidence expected between an employer and employee had been lost and subsequently a dismissal was justified.

The Employment Court stressed that, as a matter of principle, employers cannot dictate where an employee is to recuperate from sickness nor that an employer would be justified in dismissing an employee simply for not staying in their home during sick leave.  Chief Judge Colgan held

‘The purpose of sick leave is to permit an employee to recuperate and return to work without undue disadvantage’.

However, in Mr Taiapa’s case, the inconsistency between his activities during sick leave (which were not ‘consistent with recuperation’) and the information he had provided justified the employer’s actions.

This decision is also a good reminder of the employee’s duty under section 4 of the Employment Relations Act 2000 to be active and responsive (which essentially amounts to being co-operative) in providing information to the employer, where the request is reasonable.  It further reminds employers that if an employee simply refuses to supply reasonable information when asked, or to participate in reasonable enquiries by the employer –  the employer may be justified in making assumptions or conclusions about matters short of any other explanation provided.

The Wallace decision

This decision demonstrates the other side of this coin and emphasises the importance of undertaking a thorough formal investigation when ‘sick leave’ is questionable.    Mr Wallace had been working for Air New Zealand for 33 years.  Mr Wallace was dismissed for, allegedly, spending three days of sick leave playing golf.  Air New Zealand discovered his activity on the Golfing New Zealand website. Mr Wallace claimed a number of things in his defence:  That the Golfing New Zealand website may contain inaccuracies with the date he was actually playing, and that he was sick with the flu and his wife told him to get out of the house and play golf. He also told his employer he was stressed from the recent death of his parents.  Mr Wallace explained that he could not remember the dates of when he was playing golf (the Golfing Website being inaccurate) and because he genuinely had been unwell during this time.

Mr Wallace raised a personal grievance.   While it was held that declaring sick but using the time off for recreational activities can be misconduct, the Employment Relations Authority found that Air New Zealand had failed to conduct a full and fair investigation into what happened during Mr Wallace’s sick days and that the ‘company was not open to Mr Wallaces’ explanations’, or the totality of the circumstances.   It was pointed out that playing golf may have been therapeutic for Mr Wallace.  Had these reasons been considered, this could have had a significant impact on how Air New Zealand viewed the seriousness of Mr Wallace’s actions when considering the outcome of the disciplinary meeting.

What can we summarise from these two decisions?

It is important to keep in mind that it is not an employer’s place to determine the only appropriate way to recuperate from sickness or injury. It is only when these ‘recuperation’ activities are clearly inconsistent with recuperation that an employer may question whether an employee is genuinely ill and take subsequent action.

Also, it is a reminder that if you have reason to suspect that the reasons put forward for the sick leave may not be ‘genuine’, you must make a full and thorough investigation into the facts before reaching any conclusions.   Your employee has a duty to co-operate with your enquiries and if they do not – it is strongly urged that you remind them that without an explanation you may draw an adverse conclusion.