Holidaying workers raise suspicions

SUSAN HORNSBY-GELUK
Last updated 05:00 01/07/2014

Relevant offers

Opinion & Analysis

Capital Gains Tax: Relief for SMEs Does New Zealand need a Tech Commissioner? Capital gains tax: Exempting the family home Soaring property market will hit zenith All Blacks winning brand war Capital Gains Tax: Show us the money Why we hate provisional tax Care needed with trial periods A capital gains tax for NZ? Investors in limbo as election looms

OPINION: When it comes to sickness there are two types of people. One will soldier on with or without Codral. The other will take sick leave at the drop of a hat - loudly proclaiming to anyone who will listen that they have never been so sick.

This is not a column about the differences between men and women though. It is about medical certificates; in particular, what happens when an employer suspects an employee is gaming the system and questions the genuineness of a medical certificate.

In one recent case involving Madhukar Narayan and his employer, Telecom, the employer challenged a partly handwritten, partly typed medical certificate provide by a Fijian doctor.

Telecom was hauled over the coals in the Employment Court for being unreasonably suspicious about sick leave taken by Narayan.

Narayan applied for leave for a trip to Fiji for four weeks, the whole month of December 2011, but was granted only three weeks' leave until the 27th. On the 27th, he emailed Telecom, stating: "I seem to have caught a bad virus" and advising that he wouldn't be coming back to work for a few days.

Narayan neglected to tell his employer that he was still in Fiji - and didn't have a return ticket to New Zealand. He had seen a GP on Christmas Eve - apparently hand-picked by a local taxi driver.

Two days later he sent a further email saying he was still sick and was seeking a second medical opinion. He went to the Colonial War Hospital in Suva that day.

Telecom sent Narayan an email requesting that he drop off his medical certificate - not realising he was overseas - or asking if the company could send a courier to collect the certificate.

Narayan returned to New Zealand and to work on January 3. He provided a medical certificate for his illness on January 17 - there was some delay in getting hold of it as he'd left the certificate in his Fiji hotel room.

His manager, Ricky Henry, immediately suspected it had been falsified. The medical certificate did not state the name of the practice or thedoctor issuing it, or any other details. Further, Narayan couldn't specify the name of the doctor his taxi driver had taken him to.

Henry contacted a number of hospitals in Fiji which led to a prolonged inquiry about the origin of the certificate. The number on the certificate related to a patient other than Narayan, issued some years earlier.

However, before dismissing Narayan over his apparently dodgy certificate, Telecom received confirmation from the doctor in Fiji that he had indeed seen Narayan on the day in question.

Ad Feedback

Ironically, the doctor's name was Dr Narayan. Apparently they weren't related.

Telecom began a disciplinary process and Narayan was dismissed in March 2012. He brought a claim in the Employment Relations Authority claiming unjustified dismissal and that Henry had threatened him with violence and taken a dim view of his medical certificate on racial grounds.

The authority found that Narayan's dismissal was justified, and that Telecom had conducted a fair and reasonable investigation before dismissing him.

The Employment Court disagreed, finding that Telecom unfairly jumped to conclusions about the legitimacy of Narayan's medical certificate. The court commented that Henry should have approached Narayan at an early stage about the concerning format of the medical certificate.

In the end, Telecom had ignored a key fact which totally undermined the basis for its decision, namely that Narayan had in fact visited a doctor on the day he claimed to.

Narayan was awarded a month's lost wages and $7000 compensation for hurt and humiliation - which would probably quite neatly cover the cost of another break in Fiji.

At this point it is worth noting, even if it should go without saying, that sick leave isn't to be used for overseas holidays.

In a case involving Freedom Air a few years ago, a flight attendant, Chris Southcombe, applied for four weeks' leave but was granted only three - just like Narayan. He booked a four-week trip anyway - again, same story.

Before departure, Southcombe provided a medical certificate stating he was sick and that he'd need to undergo a medical review when he got back.

Apparently his doctor said he was free to travel to warmer climes (he went to Europe, not Fiji) as long as he "took it easy".

Freedom Air said that he should be recovering, not travelling. When Southcombe got back, it investigated whether he had abused his sick leave by travelling rather than recovering at home.

Freedom Air rejected Southcombe's claims about why he thought it was appropriate to travel while sick, and it dismissed him for serious misconduct.

The authority found that the dismissal was justified, and made it clear that sick leave isn't a backdoor tool for getting time off for an overseas trip.

So where do these cases leave employers dealing with those suspected of pulling a sickie? The key takeaway is to avoid jumping to conclusions, but retain a healthy scepticism where the timing seems too convenient.

A fair and reasonable employer will discuss the issue openly with the employee and put them on notice that their story doesn't stack up - rather than contacting hospitals in the first instance to try to discredit them, as Telecom did.

One might have some sympathy for Telecom in this case given the whole set of circumstances, but if this case tells us anything, it is that employers will not likely succeed in second guessing a medical certificate provided by a qualified medical practitioner, irrespective of how dodgy it may seem at face value.

- Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.

www.dundasstreet.co.nz

- BusinessDay.co.nz

Comments

Special offers

Featured Promotions

Sponsored Content