Posted on: May 08, 2013
Should employee be suspended on pay or given paid sick leave when employer deems he/she is unfit for work?
Question: If an employer requests that an employee stay at home, or go home, because he or she is unwell or unfit for work, is this time off deemed to be sick leave and therefore able to be deducted from the employee’s entitlement or is the employee to be treated as having been suspended from work?
Answer: The Holidays Act 2003 (the Act), section 68(4) provides that an employer is entitled to require an employee to establish that he or she is fit to return to work. The employer’s concern must be for health and safety or hygiene reasons, and the employer must be “legally authorised” to be able to require proof from the employee. It is not exactly clear what constitutes “legal authorisation” but it is arguable that the broad nature of the Health and Safety in Employment Act 1992 will give employers a statutory justification for requiring an employee to prove his or her fitness for work if the nature of the sickness or injury might be exacerbated by a return to work or harm other employees. It is also arguable that an appropriately worded clause in an employment agreement would constitute “legal authorisation” in the right circumstances.
The employer cannot specify the person who is to give proof-of-fitness for work (section 68(4)(b)).
Section 65(1) of the Act provides:
An employee may take sick leave if—
(a) the employee is sick or injured; or
(b) the employee’s spouse or partner is sick or injured; or
(c) a person who depends on the employee for care is sick or injured.
The wording of the Act indicates that the decision to take sick leave is a decision to be made by the employee. Despite giving an employer the right to require proof of “wellness”, the Act does not clearly give an employer the power to send an unwell employee home. Nonetheless, the Health and Safety in Employment Act clearly requires an employer to take “all practicable steps” to ensure the safety of employees at work and, in particular (section 6), to:
- provide and maintain a safe working environment, and
- provide and maintain facilities for the safety and health of employees at work.
Accordingly, it would be wiser to treat an instruction that the employee leave work until he or she is better, or has certification that he or she is fit to return to work, as a suspension on pay and not to treat the time off as sick leave.
The employer should meet with the employee and discuss the situation with him or her. It should explain its concerns and make it clear that its actions are for the benefit of the employee and the business as a whole. It should ask the employee not to return to work until he or she has a certificate of wellness or is completely better. Any rules in the employment agreement regarding suspension should be carefully followed. If the employment agreement is ambiguous, in view of the fact that the employee is “showing willing”, the employer should give the employee the benefit of the doubt.
In Davis v Kleana Bins (2002) Ltd [2012] NZERA Auckland 111, the Authority Member stated that the natural justice and procedural requirements in section 103A of the Employment Relations Act 2000 apply to a decision by an employer to suspend an employee where suspension unjustifiably disadvantages the employee. She said the new statutory obligations in that section (effective 1 April 2011) superseded prior case law, which did not involve consideration of the factors involved in section 103A of the Act. She said at [48], the Authority was required to consider whether the employer had:
- sufficiently investigated whether suspension was appropriate before it suspended the employee
- raised the proposed suspension with the employee before it suspended him
- given the employee a reasonable opportunity to respond to the proposed suspension before it suspended him, and
- genuinely considered the employee’s response to the suspension before it suspended him.
In order to justify a suspension the Authority or Court will take account of both the broad principles of procedural fairness and the particular circumstances of the employment, including the consequences of suspending or not suspending for the employee and for the enterprise.
If you’ve got a similar situation on your hands and you’re unsure which path to take, call us for advice. You don’t want to end up with a personal grievance for unjustified disadvantage to deal with!
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
