Can an Employee Be Dismissed for Taking Too Much Sick Leave in New Zealand?
New Zealand employment law provides employees with entitlements to sick leave. However, situations involving frequent or prolonged absences due to illness can become complex. While an employee cannot typically be dismissed simply for taking their legally entitled sick leave, employers may be able to manage situations where an employee's continuous or frequent absence impacts their ability to perform their job or significantly affects the business, provided a fair and reasonable process is followed.
Sick Leave Entitlements
Employees are entitled to sick leave once they have completed six months of continuous employment with the same employer, or have worked for the employer for an average of at least 10 hours per week and at least 1 hour in every week or 40 hours in every month during that six-month period [Source: Holidays Act 2003, s 65].
Upon meeting these criteria, an employee is entitled to:
- 10 days of paid sick leave in each 12-month period of employment [Source: Holidays Act 2003, s 65(1)(a)].
- Unused sick leave can be carried over, accumulating up to a maximum of 20 days [Source: Holidays Act 2003, s 66].
Sick leave can be taken by an employee who is sick or injured, or to care for a spouse, partner, dependent child, or other person who depends on the employee for care [Source: Holidays Act 2003, s 65(2)].
Notification and Proof of Illness
Employees are generally required to advise their employer as soon as possible if they are taking sick leave [Source: Holidays Act 2003, s 67].
An employer may ask for proof of sickness or injury, such as a medical certificate, if:
- The sick leave is for three or more consecutive calendar days (including weekends and public holidays) [Source: Holidays Act 2003, s 68(1)(a)].
- The employer informs the employee no later than the third day of sick leave that proof is required [Source: Holidays Act 2003, s 68(1)(b)].
- For sick leave lasting less than three consecutive calendar days, an employer may only ask for proof if they have reasonable grounds to suspect the sick leave is not genuinely for sickness or injury. In such cases, the employer must generally pay the employee's reasonable expenses for obtaining the proof [Source: Holidays Act 2003, s 68(3)].
Good Faith Obligations
The Employment Relations Act 2000 imposes a duty of good faith on both employers and employees. Good faith requires parties to be active and constructive in establishing and maintaining a productive employment relationship [Source: Employment Relations Act 2000, s 4]. In the context of sick leave, this means employers should engage with employees about their absences and employees should be open about their situation (within privacy limits) and efforts to return to work.
Managing Frequent or Long-Term Absences
While an employee cannot be penalised for taking legitimate sick leave, an employer may address situations where an employee's ongoing or frequent absence impacts their capacity to perform their job. This is generally approached as a performance or incapacity issue rather than a disciplinary matter related to the act of taking leave.
Key considerations for employers in such situations include:
- Impact on the Business: The employer must genuinely consider how the absences affect their operations and the employee's ability to fulfil their role's essential requirements.
- Consultation: The employer must engage in discussions with the employee to understand the reasons for the absences, the prognosis, and any potential support or adjustments that could assist the employee's return to work or continued employment.
- Medical Information: With the employee's consent, employers may seek medical information (e.g., from the employee's doctor) to understand the nature of the illness and prognosis, and to determine if the employee can return to their role or if adjustments are required. Any such information must be handled confidentially.
- Reasonable Accommodations: Employers should consider whether any reasonable accommodations (modifications to the job or workplace) could enable the employee to perform their role despite their health condition.
- Fair Process: Any decision regarding an employee's employment must follow a fair process, which involves informing the employee of concerns, providing an opportunity to respond, and genuinely considering their explanations and any proposed solutions.
Unjustified Dismissal and Personal Grievances
An employee who believes they have been dismissed without justification may raise a personal grievance [Source: Employment Relations Act 2000, s 103]. A personal grievance is a complaint an employee can raise if they believe their employer has done something wrong, such as unjustifiably dismissing them or acting to their disadvantage.
When determining whether a dismissal is justified, the Employment Relations Authority or Employment Court must decide whether the employer's actions, and how they acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred [Source: Employment Relations Act 2000, s 103A]. This test applies to the substantive justification (the reason for dismissal) and the procedural fairness (how the dismissal was carried out).
If an employer dismisses an employee due to frequent or long-term sick leave without following a fair process, or without sufficient substantive justification (e.g., without genuinely exploring alternatives or understanding the medical situation), the dismissal could be found to be unjustified.
Discrimination Considerations
Dismissal related to an employee's illness or health condition may also raise concerns under the Human Rights Act 1993. Discrimination on the grounds of disability is prohibited [Source: Human Rights Act 1993, s 21(1)(h)]. A 'disability' can include physical or mental illness or impairment. Employers must ensure that any decisions regarding an employee's employment are not unlawfully discriminatory and are based on the employee's actual capacity to perform their role, not on assumptions about their health condition.
When to Seek Independent Legal Advice
Individuals seeking specific information about their employment rights and obligations, or those involved in a dispute concerning sick leave, personal grievances, or potential unjustified dismissal, should consider seeking independent legal advice. Information can be obtained from organisations such as Community Law Centres, citizens advice bureaus, or private legal practitioners. Information and support are also available from the Ministry of Business, Innovation and Employment (MBIE) or unions.