A radio show recently invited listeners to call in and anonymously confess what they have used sick leave for.

Some interesting answers included:

  • Going on a date and drinking a bottle of wine;
  • Going skydiving;
  • Going horse racing (and winning, and being on TV, albeit no one seeing);
  • Getting a massage with their partner, then taking the dog for a walk;
  • Watching the Oscars live (to see Bradley Cooper and Lady Gaga’s performance);
  • Staying away from work because of a b*tch boss;
  • Playing Fortnite after a new update.

More interesting answers are sure to exist – one can only imagine, or perhaps even recall from personal experience.  Although some people may consider that taking the occasional “sickie” is harmless, there can be risks involved.

There are three potential scenarios where an employee may choose to take sick leave:

  1. They are genuinely sick or ill, and not able to work; or
  2. They are not genuinely sick or ill and are taking advantage of their sick leave entitlements; or
  3. They are genuinely ill, but they may appear to be misusing sick leave due to the activities they choose to undertake during the sick leave.

In 2013, in Taiapa v Te Runanga O Turanganui A Kiwa Trust t/a Turanga Ararau Private Training Establishment, the Employment Court confirmed the right of employers to dismiss employees for misusing sick leave. The Court stated that the deliberate abuse of sick leave entitlements could amount to serious misconduct and justify dismissal.

Mr Taiapa had a passion for Waka Ama. He sought to get time off to attend an event but had exhausted his annual leave and was required to work.  Rejecting his employer’s offer of three days off, Mr Taiapa instead went home sick on the morning of the event, citing a calf injury. Mr Taiapa then flew with his family from Gisborne to Rotorua for the Waka Ama Championships.  Mr Taiapa’s manager later came across a Facebook photograph which Mr Taiapa had uploaded of himself at the event.  Although Mr Taiapa obtained a medical certificate stating he was unfit to work during that time, his employer grew suspicious.  Following investigations, the employer concluded that Mr Taiapa’s sick leave was not genuine and dismissed him for serious misconduct.

The Employment Court stressed that it is not open for employers to dictate where an employee is to recuperate from sickness or to dismiss an employee for not staying in their home during sick leave.  However, in Mr Taiapa’s case, the inconsistency between his activities during sick leave and the information he had provided justified the employer’s inquiry into whether his sickness was genuine.

Similarly, in Stemmer v Van Den Brink Poultry Ltd in 2018, the Employment Relations Authority determined that the employee’s action of flying to Bermuda to attend the America’s Cup during a period of paid discretionary leave for stress-related illnesses was an abuse of sick leave.  Employees were reminded of their duty of good faith and honesty in communicating with their employers about the reason for taking sick leave.

In Hepburn v Huhtamaki Henderson Ltd, Mr Hepburn was granted two weeks of sick leave after suffering a period of ill health.  It later transpired that Mr Hepburn had used the bulk of that time to travel to Europe and pursue his love interest.  Based on the employer’s finding that the request for sick leave was not for genuine reasons, Mr Hepburn was dismissed.  The Employment Court upheld that the dismissal was justified.

What about the third scenario, where an employee may be genuinely sick, but appears to be abusing their sick leave due to their choice of activities?

The factual question of whether the employee was genuinely ill and unable to attend work remains a tricky area for employers to navigate, given that employees who are genuinely sick may engage in recreational activities while they are on sick leave.  This might include walking the dog or resting at the beach.  Although it may arouse some suspicion that the employee is misusing their sick leave, employers ought to follow a fair process and carefully consider the employee’s explanation prior to reaching any conclusions or making a rash decision.

In Wallace v Air New Zealand Ltd, an Air New Zealand employee was dismissed after spending three days of sick leave playing golf.  Mr Wallace was sick with the flu and said his wife told him to get out of the house and play golf, which Air New Zealand later discovered on the Golfing New Zealand website.

Mr Wallace successfully argued that he had been unjustifiably dismissed.  The Employment Relations Authority found that Air New Zealand had failed to perform a full and fair investigation into what happened during Mr Wallace’s sick days.  Air New Zealand had also failed to consider Mr Wallace’s explanations, which could have shown that he was stressed from the recent death of his parents.  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.

Based on cases decided in NZ, it is accepted that certain recreational and recuperative activities during sick leave may be appropriate, depending on the employee’s situation.  Employers should not jump to conclusions.  Importantly, where there are reasons for an employer to suspect that an employee has misused their sick leave, the employer must follow a fair process to investigate the matter, allow the employee to provide their explanation, and carefully consider the available information before concluding that there was serious misconduct by the employee.

If there are reasons to suspect that an employee has misused their sick leave or acted dishonestly in taking leave, what can an employer do?

  • Require proof of sickness – Under the Holidays Act 2003, an employer can require a medical certificate from the employee where the criteria has been met.
  • Open conversation – Employers are able to initiate conversations with their employees on concerns relating to the use of sick leave and its effect on the employee’s performance or the employer’s operations.
  • Disciplinary action – If, following a fair process in which the employee is provided with the opportunity to properly respond to the employer’s concerns and the employer decides there has been misconduct after properly considering the employee’s input, then the employer is able to take disciplinary action.

Please contact us if you require any advice or assistance, we would be more than happy to assist.