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Too sick to work, but fit for the pub - dismissal upheld

THE DOMINION POST - SATURDAY, 3 JULY 2010

Like many countries around the world, New Zealand is in the grip of football fever.

Many readers will have seen the English goal disallowed by Uruguayan referee Jorge Larrionda replayed many times on television. Fortunately, most goals hit the back of the net and make the referee's job relatively easy.

The football World Cup has arrived in New Zealand along with the worst elements of winter. So, genuine sickness, "sickies" and "acts of God" have also hit us. Snow closing the Rimutaka hill road is the most obvious "act of God" for people in the Wellington area during winter, preventing Wairarapa workers from getting to work.

Employers and their workers generally sort out issues of pay in these situations directly, without the need for lawyers and employment institutions to become involved. However, like the English goal that never was, it is the tricky cases or those of people being caught out that capture the imagination.

Take the case of Paul Woodhead who was working for Resene Paints. He became involved in a disciplinary process relating to his performance. His advocate said that he was unfit to attend work because he was unwell and therefore unable to attend certain disciplinary meetings. The company requested a more specific medical explanation but Mr Woodhead refused to give one. Resene then found that Mr Woodhead was at the pub socialising each week, when he was supposedly suffering such a level of illness that he was unfit to attend meetings.

Things took a turn for the worse and the company dismissed Mr Woodhead. He argued that visiting the pub was a part of his illness rehabilitation. "Yeah right."

The Employment Relations Authority upheld the dismissal because it held that Mr Woodhead had adequate opportunity to explain his medical illness and did not.

Resene also had good grounds to doubt that the degree of Mr Woodhead's illness was such that he could not attend disciplinary meetings.

By statute, everyone gets five days of sick leave after six months of employment. This is replenished each subsequent 12 months.

However, many employers have more generous provisions, or for a time will pay their employees when they are sick regardless of whether or not the sick leave has been exhausted. Sometimes workers will anticipate future sick leave, sometimes they will take annual leave, and sometimes they will just be given extra leave because of the generosity of the employer.

Wellington is awash with flu and other bugs right now, and issues such as these will be exercising the minds of companies and workers.

Other employment issues also arise in the context of winter weather. What happens, for example, when "acts of God" intervene, and employees can't get to work because of the weather? Does the employer have to pay their wages?

The answer to this is probably no, the employer pays its employee to deliver work for it and is not obliged to pay when they don't front, even if it is through no fault of theirs. Of course the employment agreement could deal with the issue.

The old case of Tennant v Earl of Glasgow defined "acts of God" as unforeseeable events. In 1860 an extraordinary and unprecedented flood caused a wall to collapse and the escaping water damaged neighbouring property. The House of Lords said the owner of the wall didn't have to pay damages. It was all an "act of God".

Examples of "acts of God" are when the workplace burns down, or when the ship sinks and the workers have lost their place of employment.

Enjoy what is left of the football World Cup, avoid the flu bugs, and if your workers are away they can at the least truthfully say why. I'm sure Wellington employers will then respond kindly.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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