Employment Law
Employment Law

Sick Leave – Bad Employers and Bad Employees

Can you be disciplined for being sick, genuinely sick that is? An employee who worked for a large New Zealand company was sacked during a probationary period because his sick leave record showed he was a risk despite the fact that he had been genuinely sick. He was not only genuinely sick but also a top performer on all compliance and customer satisfaction KPI’s.

He received a letter after he used some but not all of his sick leave or, as they referred to it, “unplanned leave”. They stated “we provide all employees with X day’s unplanned leave each year. Unplanned absences place pressure on your colleagues and mean we cannot provide the level of service our customers both expect and deserve”. Well, this left him in little doubt about his position on the list of people his employer loves. Healthy employees and customers came first equal. He came last. But they did not stop there. They declared that as a person who worked from home they “would expect to see him having fewer unplanned absences”. Why? Because he could work when he was sick. They pointed out that unlike his colleagues who worked in the office he did not need to travel to work, which presumably might not be good for his health; and, secondly, he would not be around his work colleagues, presumably spreading sickness to everyone and causing even greater disruption to the service their customers deserve.

We’ve seen a disturbing number of cases involving clients who have been disciplined by their employer for taking “excessive” sick leave when they have been genuinely sick. This is unfair. We all get sick. These things are beyond our control. People should not be punished for this.

So what are you entitled to? The Holidays Act 2003 says that once you have completed 6 months of continuous employment with your employer, you will be entitled to 5 paid days’ sick leave per year. You may take sick leave if:
• you are sick or injured; or
• your spouse or partner is sick or injured; or
• a person who depends on you for care is sick or injured.

However, this does not limit you only to 5 days off work sick per year but any sick leave above the statutory minimum will likely be unpaid unless your employer offers you more paid time off. It is important to note, you cannot be disadvantaged in your employment over taking genuine sick leave; and this includes genuine unpaid sick leave.

For every bad employer there are bad employees who misuse their sick leave. There are employees who find Public Holidays cause them to become sick. Even on the work day preceding a Public Holiday there are employees incapacitated in their cars as they hurtle towards the ski fields. And the first day after a Public Holiday is a high risk time. Viruses and harmful bacteria are particularly active on those days given many staff report in with the Flu or upset tummies. Now there are some genuine cases of people being unwell after a Public Holiday because we know some Grandmas’ food hygiene practices can be dodgy. But if you are sick around a Public Holiday more than once don’t be surprised if your employer starts asking questions. Gamers, well they are another group who need to be careful particularly when they are playing in different time zones. Your Monday is other gamers Sundays and they won’t be happy if you declare you are off to work. On the other hand your employer will not be best pleased if every second Monday a migraine strikes you down. Migraines aren’t that regular and your employer knows it.

You need to remember there are dangers in taking sick leave on the very days you applied unsuccessfully for annual leave. Mr Taiapa discovered this when the Employment Court decided his dismissal was justifiable. Mr Taiapa had used up his annual leave and was overdrawn on his sick leave when he had asked for five days leave to attend the New Zealand Secondary Schools Waka Ama Championships. An agreement was made whereby Mr Taiapa would work on 28 and 29 March, as there was no cover available, but would be able to take the other days off. However, Mr Taiapa came to work on 28 March, but went home mid-morning, claiming he was suffering from a longstanding calf injury. A staff member later saw him leaving Gisbourne with his partner. His employer later saw a photograph of him at the championships on Facebook.

In its decision there was some good news for employees other than Mr Taiapa. The Chief Judge indicated that when you are sick you do not necessarily have to stay at home. He said “there may be any one or more of many reasons why an employee will recuperate from illness or injury at another location: for example, the employee’s family or whanau may live elsewhere and their presence may assist considerably in both physical and spiritual elements of recuperation.” But he went on to say “what is important is that such information is made known to the employer who or which might seek it and who or which, of course, has a very real stake in an early and full recuperation.” The best advice we can give you is that if you need to go around the corner to your mum’s, do so and, if the employer later asks, tell him where you were going. However, if your mum lives on the Gold Coast then first go to your doctor and get him to give you a note saying that you need to go home and recuperate Gold Coast or not; and then give it to your employer.

Taiapa v Te Runanga O Turanganui A Kiwa Trust (t/as Turanga Ararau Private Training Establishment) (2013) 10 NZELR 378

Published on Friday, June 15th, 2018, under Blog

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