Throwing a sickie may soon get tougher

SUSAN HORNSBY-GELUK
Last updated 08:02 10/09/2013
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OPINION: Requests for sick leave are usually taken at face value by employers, underpinned by the trust and confidence that exist in the employment relationship.

Abuse of sick leave and misuse of medical certificates only becomes problematic where patterns of absence develop or where a request for sick leave appears inconsistent with the employee's demeanour, or escapades as captured on Facebook.

The reality is that it is hardly difficult for an employee to obtain a medical certificate from their GP. A Herald on Sunday reporter recently visited three Auckland doctors and was given time off work by all of them after saying he "wasn't feeling 100 per cent" and was "a bit tired". If these symptoms were described in the workplace, most employers would rightfully tell the employee to harden up.

However, doctors tend to accede to requests for time off work, often in the face of limited disclosure by the patient or possibly family and cultural influences on how they complete their certificate. Faced with such a certificate, an employer acting in good faith has little option but to follow the doctor's guidance.

Many employers complain that medical certificates tend to be extremely brief, contain a paucity of detail, and are absolutely unhelpful where the employer genuinely wants certainty about what is going on and when the employee is likely to be able to return to the workplace. Seventy per cent of employers who took part in a recent Employers and Manufacturers survey said they were unhappy with the medical certificates they received from employees taking sick leave.

Last month, a procedural victory for Air New Zealand in the Employment Relations Authority strengthened the position of employers where there are disputes relating to sick leave.

Flight attendant Gina Kensington was dismissed by Air New Zealand following a dispute about sick leave she allegedly took to care for her sister. While the substantive decision went against Air New Zealand and Kensington was found to have been unjustifiably dismissed, the authority ordered disclosure of Kensington's bank records and Facebook page for the days she claimed to have been on sick leave in order to establish the veracity of her claims that she was caring for her sister.

It will give employers some comfort to know that by widening the range of information that an employee may be required to provide, a suspicious medical certificate can be tested against other evidence.

The authority's decision intimates that Kensington's decision to post photos of herself on Takapuna Beach, and upload them to her Facebook page at the same time as she was attempting to text her employer to arrange sick leave for the day, was a relevant factor in the authority's assessment of whether she contributed to her dismissal.

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While a social media expose of how one is spending one's sick leave in the great outdoors is obviously ill-advised, the case law indicates that an employee's chosen form of recuperation may take various forms, and that recreation is not necessarily out of the question.

In a 2004 decision, coincidentally another Air New Zealand case, Christchurch check-in employee John Wallace was found to have been unjustifiably dismissed for spending three sick leave days on the golf course. Air New Zealand had discovered details of his golf rounds on a website. Wallace gave evidence that he had gone home with the flu and his wife had told him to get out of the house and play a round.

However, rather than criticising the employee's decision to pursue recreational activities, the authority focused on the fact that Air New Zealand had failed to undertake a full and fair investigation of the sick leave dates in comparison with the golf rounds on the website, and had not properly considered Wallace's explanation that he was suffering stress from the recent deaths of both his parents. Golf, he said, was therapeutic.

This case again turns the light back on the medical evidence which is typically available to employers, which is generally limited. But there is some light at the end of the tunnel. The Medical Council has recently been reviewing the standard it produces for doctors issuing certificates. Under the proposed changes, doctors will be required to include more expansive information and disclose more about the patient's diagnosis and any limitations on his or her ability to work. This will add some teeth to an employer's request for a medical certificate where misuse of sick leave is suspected.

More often than not, an employer is not particularly interested in receiving detailed health information, which of course the GP is unable to disclose given the patient's right to privacy. Under the proposed changes, the focus is taken away from detailed health information, and focuses on activity prescription - what the employee can and should do, rather than what they can't.

This change will allow employers to engage in dialogue with the employee earlier about a structured return to work. Where the doctor believes the condition arises from the workplace environment, the doctor will be required to include both the diagnosis and the factors relating to the workplace that are believed have contributed to the illness.

Finally, the proposed changes will provide more guidance to doctors about what can be disclosed where employers seek further information about the patient's health, above and beyond the medical certificate. This at least opens the door to discussions, where previously the presentation of a certificate would effectively silence the dialogue.

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

- © Fairfax NZ News

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