Golfing on sick leave? Employers can’t control where an employee spends sick leave

30 July 2018

We are right in the middle of winter and many workers are wary of catching a cold or flu and keep one eye on their sick leave balance. Some workplaces expect sick leave to be taken only when a worker is so unwell they physically cannot drag themselves to work. Often sick workers will slurp cough medicine and cover their desks in tissue origami, still feeling the pressure not to go home. These sorts of attitudes show sick leave is sometimes misunderstood. In reality sick leave may be lawfully used in ways that might seem bizarre.

In 2004 the Employment Relations Authority found that John Wallace, an Air New Zealand check-in employee in Christchurch, was unjustifiably dismissed for spending three sick leave days on the golf course. Wallace said he had gone home with the flu and his wife had told him to get out of the house and play a round. Air New Zealand had discovered details of his golf rounds on the Golfing New Zealand website.

Instead of criticising the employee for playing golf while on sick leave, the Authority focused on Air New Zealand’s failure to undertake a full and fair investigation of what happened on the sick leave dates. Air New Zealand also failed to properly consider Wallace's explanation that he was suffering stress from the recent deaths of both his parents. Many find golf relaxing and therapeutic. It could therefore be an appropriate recreational activity for Mr Wallace to undertake on sick leave in order to improve his wellbeing.

The Employment Court heard a similar case in 2013. Bruce Taiapa was very passionate about Waka Ama and two days before a Waka Ama championship asked his employer for five days leave to attend the event. Not only had Mr Taiapa’s annual leave already been used up entirely by attending Waka Ama competitions, he also owed his employer leave he had taken in advance. Mr Taiapa was also needed at work on the relevant days.

As a compromise, his employer offered him three days off, one of which would be paid. No one was available to cover the other two days of work. Mr Taiapa never responded to this offer but went home ‘sick’ on the morning of the Waka Ama championship and travelled from Gisborne to Rotorua for the event. He also went to Mount Maunganui for another sports event.

Mr Taiapa was seen by a colleague as he left Gisborne with his family. His manager also saw a photo of Mr Tapipa at the event on Facebook. In the photograph Mr Taiapa was sitting on outdoor ‘bleacher’ seating with a number of young people, smiling and gesturing ‘thumbs up’. Mr Taiapa’s employer inquired as to whether his sick leave was genuine. Mr Taiapa gave over 50 different explanations for the relevant events, many of which contradicted each other.

Mr Taiapa’s employer concluded he had taken sick leave for non-genuine reasons and this was serious misconduct. Mr Taiapa was dismissed. He challenged his dismissal in the Employment Court but the Court found the employer to be justified in dismissing him.

The Chief Judge at the time decided the case and took the opportunity to make further useful comments about sick leave. If an employee takes sick leave for genuine reasons, the employer cannot dictate where the employee is to take the sick leave and cannot dismiss or disadvantage the employee for not being at home.

The purpose of sick leave is to enable an employee to recuperate and return to work without undue disadvantage. As long as the sick leave is reasonable and genuine the employee cannot be dismissed or otherwise lose their employment.

The Chief Judge acknowledged many reasons why an employee might recuperate from illness or injury away from their home: for example, the employee’s family or whanau may live elsewhere and their presence may assist considerably in the employee’s recovery. However, if an employer asks about the employee’s whereabouts it is essential that the employee tell them.

On the other hand, what an employee does during sick leave is much more relevant to the employer. If an employee’s activities during sick leave do not appear consistent with recuperation, the employer may inquire as to the genuineness of the illness or injury. In this case, Mr Taiapa’s presence at a sporting event caused the employer to suspect he may not have been ill. The employer was entitled to inquire further and Mr Taiapa was obliged to actively and honestly respond.

Openness and honesty should be touchstone principles when employees communicate with their employers about sick leave. Misleading your employer or abusing sick leave entitlements may lead to serious consequences, even beyond dismissal. In early 2018 the Employment Relations Authority ordered an employee to pay a penalty for breaching good faith by abusing sick leave.

Donna Stemmer travelled to Bermuda to watch the Americas Cup race while on paid discretionary leave for dizzy spells and stress (she had no entitlement to sick leave). Ironically, Dr Stemmer was an HR manager. She spent several weeks in Bermuda while on paid leave, never telling her employer where she was or what she was doing. She deliberately misled them when they inquired. The Authority decided this was a serious breach of good faith. The Authority ordered Dr Stemmer to pay a $5,000 penalty to the employer.