Employer Insights

Think someone is throwing a sickie?

Lisa JohnsonPosted by Lisa
min read

Here is a cautionary tale about an employer who had to pay over $20,000 for constructively dismissing a sick employee.  You can read the details in the link, but here are a couple of points you really need to keep in mind when managing staff and their sick leave:

When can you demand a Medical Certificate to verify sick leave?

Under NZ law, you are entitled to request a medical certificate after the employee has called in sick for three days in a row.  If you want a medical certificate before that (ie within that 3 day period) you can request it, but you will be responsible for paying the doctor’s fees.

When should your employee let you know they cannot come into work due to sickness?

The law is vague and only says ‘as soon as possible’.  You are allowed to specify rules around calling in sick in the employment contract, so it’s a great idea to ensure that you do this.  For example, you may require an employee to advise their manager that they are sick and not coming to work within 90 minutes of their normal start time (or from the start of their shift).

Do they have to call you, or can they text you instead?

The law says they only have to advise you, and a lot of employers accept text messages as advice.  If you prefer someone to pick up the phone, make sure you specify this in your employment contract with the employee.

Are temps entitled to sick leave?

Under NZ law, if a casual employee has been working for six months, they have the same entitlements as permanent staff for paid sick leave.  The employer/employee relationship is actually between the agency and the temp, so the agency needs to manage the request for leave, but you should be aware that you may incur charges if the temp is paid for sick leave.

Can you fire someone for being sick?

Technically you can.  If the illness means that they are unable to fulfil the duties of their job, the employer can give notice to terminate the employment.  But approach this with caution – make sure that you ask for a medical certificate and if necessary, pay doctors’ fees to get it.  When warning employees, be very clear what the warning is in relation to and what the consequences are.  And, make sure you have rules around sick leave specified in your employment contract so you can refer back to them (for example setting timeframes for calling in sick).

What is constructive dismissal?

This is where you don’t actually fire someone, but the employee feels their employment is so untenable that they are forced to resign.  The Employment Relations Authority (ERA) is not fond of employers who have staff who claim constructive dismissal and they generally don’t care if you don’t know how to performance manage staff properly, as their view is, that it’s your responsibility to know what your obligations are.  If you are at all unsure how to protect your business from constructive dismissal claims, I suggest you get some advice before you start any performance management processes.