Suspicious about Sick Leave?

If you suspect an employee is misusing sick leave what can you do? Some employers quickly turn detective. Recent examples in the courts include employers checking facebook, physically tracking employees and even demanding to see bank accounts. And while those actions might reveal what an employer suspects, the courts view the need for fair and reasonable responses as paramount in deciding if dismissals for throwing a sickie are justified.

The court recently upheld an employer’s decision to fire a Gisborne man whose facebook postings revealed his sick day was in fact spent at a Waka Ama championship. However in another facebook-related case, Air New Zealand had dismissed an employee for misusing sick leave. The employee lodged a personal grievance, and as part of the pre-hearing discovery process Air New Zealand demanded to see her facebook postings and bank account details for the day in question. In this case, the information requested confirmed the employee had been telling the truth about her reasons for sick leave, and the Employment Relations Authority ultimately ruled that dismissing her was unjustified and was not what a fair and reasonable employer could have done in the circumstances.

As with all employment law, the onus is on the employer to be fair and reasonable. If you do end up taking disciplinary action or firing an employee, you need to be able to show that you had a fair and reasonable procedure in place for obtaining evidence, giving them a chance to provide proof of sickness and discussing the issue with them.

So let’s consider the Holidays Act – the law that covers sick leave. The Holidays Act 2003 stipulates that employees are entitled to a minimum of five days paid sick leave per year after six months continuous employment and that up to 15 unused sick leave days roll over up to a maximum of 20 days to be taken in any one year. It’s also important to note that sick leave covers not just the employee who is sick or injured, but also includes that person caring for a spouse or dependent who is sick or injured. An amendment to the Act in 2010 means that an employers have the right to require proof of sickness or injury from the first day if they have good reason to, they tell the employee as early as possible that proof is required and then agree to pay for reasonable expenses to get that proof.

A further point to note is that if an employee is sick while on annual leave they can claim those days as sick leave, as long as they fall on what would have been a working day. Also, while it may seem obvious, an Employment Relations Authority ruling in 2007 stated that sick leave doesn’t give carte blanche to employees to undertake whatever activities they wish, and that sick leave is not available to take overseas holidays. As murky as this can sometimes seem, employers do have a right to discipline, or in some cases dismiss, employees who have dishonestly taken sick leave. To support your decision ask for proof, follow fair process and ensure your final decision could be considered fair and reasonable.

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Disclaimer: 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.

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Nick Mason

Position: Partner
DDI: +64 3 545 7897