How To Know If An Employee Is Sick

Transcription

1 Throwing a sickie how to best handle the new employer rights Elizabeth Coats, solicitor, Bell Gully 1. All New Zealand employers understand that every employee is entitled to paid sick leave it s the law under the Holidays Act The intention of sick leave is to allow employees to recover from sickness or injury away from work, without losing pay. From time to time, however, employers suspect that sick leave is being misused and employees are throwing a sickie. 3. While throwing a sickie may seem trivial, the reality is that abuse of sick leave can be costly and disruptive for employers. It is therefore important that all employers understand their rights when they suspect that an employee s reason for taking sick leave is not genuine. 4. This paper addresses with changes to the law regarding employer s rights to request proof of sickness, and an employer s ability to dismiss employees for dishonestly taking sick leave. The current law Sick leave entitlements 5. The Holidays Act 2003 provides a minimum entitlement of five days paid sick leave per year after the first six months continuous employment, and an additional five days paid sick leave after each subsequent 12 month period: ss 63 and Sick leave may be taken when an employee is sick or injured, or when the employee s spouse or a person who depends on the employee (such as a child or elderly parent) is sick or injured and needs care: s An employee can carry over 15 days unused sick leave from one 12-month period of employment to the next, up to a maximum of 20 days current entitlement in any one year: s Of course, there is nothing to prevent an employer from providing enhanced or additional sick leave entitlements over and above the minimum entitlements set out in the Act. 9. If an employee wishes to take sick leave, they must notify their employer of their intention to take sick leave as early as possible before the employee is due to start work on the day (or, if that is not practicable, as early as possible after that time): s 64. Proof of sickness or injury when an employer can request this 10. Currently, an employer may require an employee to produce proof of sickness or injury for sick leave if the sickness or injury that gave rise to the leave is for a period of three or more consecutive calendar days (whether or not those days would otherwise be working days for the employee): s 68(1). 11. An employer may also require proof of sickness or injury within the three consecutive calendar days if the employer: a. has reasonable grounds to suspect that the sick leave being taken by the employee is not genuine because none of the grounds in s 65(1) are met (i.e. the employee is not sick or injured, and the employee is not caring for any spouse or dependent who is sick or injured); b. informs the employee as early as possible after forming the suspicion that the sick leave being taken is not genuine, that the proof is required; and c. agrees to meet the employee s reasonable expenses in obtaining the proof

2 12. The employer and employee may also agree that the employee is required to provide proof of sickness or injury for any sick leave taken in addition to the employee s sick leave entitlement of five days per year. 13. The legislation does not define the meaning of the term reasonable grounds, as each case should be decided on its own merits. What reasonable grounds are therefore depend on the facts of the particular case, but there would need to be some basis for an employer s suspicion. 14. It is not uncommon for an employer to be concerned from a health and safety perspective that an employee who has taken a long period of sick leave is not yet fully fit to return. An employer may also require an employee to prove that they are fit to return to work after a period of sick leave: s 68(4), Holidays Act The employer s concern must be for health and safety reasons, and the employer must be legally authorised to be able to require proof from the employee. 15. For example, in Radio New Zealand Ltd v Snowdon, a senior manager attempted to return to work after some months off work on stress-related leave. Radio New Zealand refused to allow her to return until she had established her fitness to return through a medical examination by a doctor nominated by the company. In making this request, Radio New Zealand relied on a clause in its employment agreement with Ms Snowdon. The Employment Court was reluctant to enforce a contractual clause that required an employee to submit to a medical examination and observed that any such clause would be interpreted narrowly. However, the Court also held that employers have a right to seek information if they have a legitimate concern regarding an employee s fitness to return to work, and employees have an obligation to provide information when reasonably requested to do so. 16. If an employee is required to provide proof of sickness or injury under section 68 of the Act and fails, without reasonable excuse, to do so, the employer is not required to pay the employee for any sick leave in respect of which the proof is required until the employee complies with that requirement: s 72(1). What amounts to proof of sickness or injury 17. The Act states that proof of sickness or injury may include a certificate from a medical practitioner (within the meaning of the Medical Practitioners Act 1995) that: a. the employee is not fit to attend work because of sickness or injury; or b. the employee cannot attend work i. because the employee s spouse or partner is sick or injured ii. because a person who depends on the employee for care is sick or injured. 18. A common issue for employers is that a medical certificate that states Joe is unwell due to stress and will not be fit to return to work for two weeks is unhelpful, as it provides minimum information about the employee s situation, thereby making it difficult to investigate. It is important that an employer has enough information to determine whether it is likely to be an ongoing problem and whether the employer needs to take steps to adjust the employee s workload. 19. A guideline published by OSH for General Practitioners in 2004 recommended that medical certificates give a definitive diagnosis, listing the factors that the employee has identified as being relevant to their employer. 20. Unfortunately (for employers), this means that the patient (employee) has the final say in what information is divulged to their employer in the medical certificate. It is certainly not uncommon for a medical certificate to provide little information beyond a high level description of the employee s diagnosis e.g. stress, anxiety

3 Changes to the law 21. Unfortunately, for employers, the Holidays Amendment Act 2010 does not significantly improve their rights to require proof of sickness or injury. 22. The main changes are as follows: a. An employer may require proof of sickness or injury within three consecutive calendar days if the employer: i. informs the employee as early as possible that the proof is required; and ii. agrees to meet the employee s reasonable expenses in obtaining the proof b. The term medical practitioner has been defined as a health practitioner who is, or is deemed to be, registered with the New Zealand Medical Council as a practitioner of the profession of medicine. This change is made to align the definition of medical practitioner in the Act with the Health Practitioners Competence Assurance Act In other words, there is no longer any requirement for the employer to have reasonable grounds to suspect that the employee s reason for taking the sick leave is not genuine. Otherwise, an employer s rights in relation to requesting proof of sickness or injury remain the same. Rationale behind the change 24. The intention behind each of the changes made to the Act is to provide more choice for employees and employers, to make the Act easier to understand and comply with, and to improve the balance of fairness between employees and employers. 25. At present, employers can be confused about the point at which they will be deemed to have reasonable grounds to suspect an abuse of sick leave. The removal of a requirement for an employer to have reasonable grounds to suspect an abuse of sick leave will thus allow an employer to address repeated problem absences more promptly when issues arise. In proposing the change. the National Party argued that the requirement that an employer meet the reasonable costs of obtaining proof will ensure that employers only invoke their rights under the Act when there is genuine concern that someone is abusing their sick leave. Kate Wilkinson was quoted by the NZ Herald as saying, I don't expect this provision will get much more use than it does right now, but it is intended to be much simpler to understand and implement However, the Labour and Green members of the Transport and Industrial Relations Select Committee were opposed to allowing an employer to request proof of injury or sickness within the first three days of leave without having reasonable grounds to suspect that the sick leave is not genuine. These parties believe that this provision is unnecessary. The current law allows employers to require a medical certificate if there are reasonable grounds for suspecting abuse; these parties were concerned that this provision would allow an employer to require an employee to get a medical certificate for no reason, which could be used by bad employers in a punitive way. The parties also argued that having to go to a medical practitioner for some genuine illnesses is a waste of time and money, is impractical, and might not be possible given the capacity of some medical centres. Dealing with suspected sickies 27. Taking into account the current and proposed law, it is worthwhile considering how an employer should go about determining whether an employee is abusing their sick leave entitlements. 28. An employer who believes that an employee has misused their sick leave entitlements may exercise their rights under the Act to require the employee to provide proof of sickness or injury. If the

4 employee is unable to provide such proof (for example, the medical practitioner confirms that the employee is fit to work), the employer may meet with the employee to discuss its concerns. 29. A word of warning, however. As with any disciplinary or performance management process, an employer should avoid jumping to conclusions. A sensible approach to situations of suspected sickies, or where there is a regular pattern of sick leave (e.g. an employee often calls in sick on a particular day of the week), may be to discuss the issue openly with the employee and convey the concern or suspicion to them. 30. It may be necessary to take the matter further and address the issue through a formal disciplinary process. In that event, the employer must carry out a full and fair investigation. This will generally involve a meeting with the employee to put the allegation to them, giving them an opportunity to explain, and taking all relevant considerations into account before deciding whether to take any disciplinary action. 31. In appropriate cases, and where an employer has followed a fair process, an employer may be justified in dismissing an employee for dishonestly taking sick leave. Case examples 32. Griffith v Sunbeam Corporation Limited (2006, Employment Court) highlights some of the issues that can arise where an employee improperly takes sick leave and then gets caught out. 33. Mr Griffith was dismissed from his employment after 22 years service on the basis that he had abused his rights to take sick leave and had deceived his employer in the course of its investigation into the issue. Mr Griffith claimed that his dismissal was unjustifiable. 34. Mr Griffith called in sick on a particular day, telling his employer that he would not be of use to anyone. The fact that it was a beautiful day, combined with the knowledge that Mr Griffith was currently building a house as part of an interest in property development, led his employer to suspect that Mr Griffith was not actually sick. 35. Rather than calling Mr Griffith and asking him to obtain proof of sickness or injury (through a medical certificate), the employer decided to take matters into its own hands by travelling out of the office to find Mr Griffith. 36. In the ensuing investigation, Mr Griffith was found on a building site, wearing working clothes, including a tool belt and boots. He was seen swinging a hammer and giving instructions to others. The employer s evidence was that Mr Griffith did not appear to be at all incapacitated. 37. The Employment Court found that, based on the information available to the employer at the time, it was open to it to conclude that Mr Griffith had abused his right to take sick leave. The employer was also justified in taking the view that if Mr Griffith was capable of working on the building site, he was capable of coming to work. 38. Judge Couch considered whether Mr Griffith s actions amounted to conduct capable of being regarded as serious misconduct. His Honour said: The use of sick leave is, by its nature, a matter requiring a significant degree of trust of the employee by the employer. His Honour s view was that in general, abuse of the right to paid sick leave will be serious because it involves obtaining payment by a false pretence or at least attempting to do so. However, His Honour also cautioned that not every case of misuse of the right to sick leave will necessarily be capable of amounting to serious misconduct. In some cases there may be special factors suggesting that it ought not to be regarded in this way, either generally or in a particular case. It follows that every case must be determined on the facts. 39. Unsworth v Orakei Korako Geyserland Resort (2000) Limited (2010, Employment Relations Authority) shows the importance for employers of following up repeated requests for medical certificates from employees. 40. In this case, the employee was dismissed for a failure to report to work on a certain day, when he had specifically been instructed to do so. During his employment, the employee had a history of

5 calling in sick in suspicious circumstances. Although the employer sought medical certificates to explain these absences, the employee s failure to provide these to the employer was rarely followed up. 41. On the day of his dismissal, the employee was to start work at 8 am. At 7.30 am, he telephoned his employer from a friend s house to say that he had a headache and would not be reporting for work. As the employee had previously asked for the day off so that he could attend a coffee festival, the employer told the employee that he did not believe that the employee was ill. The employee did not report to work that day, and upon his return to work the day after, a confrontation ensued between employee and employer. At the end of that heated discussion, the employee was dismissed. 42. The Authority held that the dismissal was unjustified due to the absence of any fair procedure or investigation into the allegations of false sick leave on the day before the dismissal. However, the Authority referred to Griffith and commented that in respect of the employee s use of sick leave, he had acted in a manner that undermined his trust and confidence in him in a number of respects. The Authority therefore reduced the amounts of lost wages and compensation awarded significantly, to reflect the employee s contribution to the situation giving rise to his personal grievance. 43. Southcombe v Freedom Air Limited (2007, Employment Relations Authority) should reassure employers that even when a medical certificate is provided to address a period of absence, disciplinary action may be taken if the employee abuses that period of leave for some purpose other than rest and recovery. 44. The employee (a flight attendant) applied for a period of four weeks annual leave for an overseas holiday. The employee was granted three weeks leave. Despite not being granted the full four weeks he had requested, the employee booked a four week trip to Europe anyway. 45. One week before his leave was to commence, the employee provided his employer with a medical certificate that stated that the employee was ill, and had been advised to return for a medical review on his return from leave. The employee said that he had spoken to his doctor about his overseas trip, and that the doctor had said he did not mind him travelling to warmer climes so long as he took it easy. 46. Understandably, the employer sought further clarification around the sick leave as a period of annual leave had already been approved and it now appeared that the employee would be off sick. The employer indicated that if the employee was sick, he should be taking time to recover and not travelling overseas. 47. The employee proceeded with his travel plans. After his return, the employer commenced an investigation into whether the employee used his medical certificate for the purposes of overseas travel rather than for rest and recovery. The employer rejected the employee s explanation as to why he thought it appropriate to travel while sick, and dismissed him. 48. The Authority accepted the employer s submissions that the purpose of sick leave is to excuse the employee from the obligation to attend work and to allow them to take time to recover so that they can return to work quickly. The Authority stated that an employee does not have carte blanche to undertake whatever activities he or she wishes during a period of sick leave, and that sick leave is not available to take overseas holidays. 49. The Authority held that the employee s dismissal was justified. 50. Summary: the cases show that employers may be able to hold errant employees accountable for disingenuous sick leave, even without relying on obtaining a medical certificate to do so. However, to justify dismissal, the employer will need to show that they carried out a full and fair investigation into the employee s alleged wrongdoing, and that a fair and reasonable employer would have come to a finding of serious misconduct

6 What should employers do to prepare for the change to the law? 51. The key points for employers to consider are: a. You can now ask for proof of sickness or injury within three consecutive calendar days without having reasonable grounds to suspect that the reason is not genuine. This will allow you to flush out employees who habitually take sickies but are not genuinely sick. b. If an employer wishes to take disciplinary action for suspected sickies, using this right does not obviate the need for employers to conduct fair and reasonable investigations beforehand. The cases discussed above highlight the need to comply with the requirements of a fair dismissal or disciplinary action under the Employment Relations Act. c. Employers should consider, in advance, the circumstances in which they will require employees to provide proof of sickness or injury and the practical arrangements that they may need to put in place to effect this. d. Employers may want to update leave policies and leave provisions in employment agreements so that employees are aware of their employer s rights going forward