In Sickness and in Health



An employment relationship may feel like a marriage, but when your employee signs that agreement do you really promise to support them till death do you part?

Kathy Hughes looks at handling long term sickness. Even the best employee can get sick. Colds, flu and every day illnesses are easily handled with the sick leave provisions of the Holidays Act, but what do you do when an employee suffers a more serious accident or illness that keeps them off work for an extended period? How do you deal with an employee who can no longer carry out the responsibilities of their role in full? You might decide that you can’t continue to employ them.

What you will or can do depends on the circumstances of each case. As with any time you consider terminating employment, proper procedure is paramount. You will need to consider, amongst other things, how long the absence due to illness or accident has been, what if any prospects there are for recovery, how long the staff member has been in your employment, and what long term effects there may be. You may also need to consider if there are any alternative positions that might be available.

You will need to consult with the employee and ask for information from their Doctor or Consultant. You might want to get a second opinion and ask your employee to undergo an examination by your company’s designated medical practitioner. You can only do this if your employment agreement has provision for this course of action.

The recent case of Snowdon v Radio NZ Ltd reflects the need to have the right clause in your agreements. Ms Snowdon had been on extended sick leave without giving any reason for her absence. Radio New Zealand received a medical certificate indicating she was fit to return to work at the company and so they requested she attend a doctor that was independent so that they could understand the nature of her illness.

The employment Agreement contained the provision for Radio New Zealand to ‘request’ this. Ms Snowdon refused to consent to examination and brought a personal grievance claiming Unjustified Disadvantage. The Employment Relations Authority concluded that the word ‘request’ used in the Agreement indicates something that can be refused, which Snowdon did, that ‘require’ would have been more enforceable, but then went on to conclude that an employer is not entitled to require a worker to undergo a medical examination without consent.

So what process should you take? Don’t hurry your actions, wait for a reasonable time before taking action. This will depend on the length of time an employee has been with the company but four weeks would normally be a minimum. Consult with the employee and decide on how long you can keep the role open, this may also mean looking at the feasibility of temporary staff.

Discuss the issues with the employee seeking information about their condition and find out when they are likely to return to work. Get a medical opinion and if your agreement allows ask the employee to undergo an independent investigation at your cost.

Consider any alternative arrangements such as other jobs, duties or hours of work that may be possible. In your consultations with the employee let them know that there is the potential for job loss, but that you also want to thoroughly investigate all options before coming to any conclusions.

Have a formal internal meeting to consider all of the information at hand, consulting with the employee again. Listen to what they have to say, have a break to discuss all the information to hand, reconvene and then come to a conclusion.

The law does not expect you to hold a job open indefinitely, particularly if that role is crucial to the business operation but it does expect you to act fairly and openly, giving due consideration to all the circumstances and information available before dismissing an employee for sickness.

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