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Shark wrestling may be tonic but don't lie to boss

The Dominion Post - Tuesday 21 May 2013

One day far far away, winter will visit wonderful Wellington.

Should our Indian summer end, colds, flu and sniffles will return. Sometimes there may even be malingering. But what does the law have to say about the worker who uses their sick leave for other purposes?

Paul Marshallsea and his wife were on sick leave for work-related stress when they turned up on holiday in Australia far from their employer. Both were employed by a children's charity in Methyr Tydfil, a borough in southern Wales. But while enjoying a barbecue on Bullet beach, a shark was spotted near where young children were playing. Being a good Samaritan, Marshallsea ran into the waves and, believe it or not, grabbed the 6-foot shark and proceeded to drag it into deeper water away from the children.

It just so happened that a television crew was filming nearby and in a prime position to capture the amazing feat on camera. The footage was promptly beamed around the world, transforming Marshallsea into an Australian national hero overnight. However, not so in Wales, as you will see.

When the footage was seen by his employer, both Marshallsea and his wife were dismissed.

The employer said there was a breakdown of trust and confidence. When interviewed, the grief-stricken hero asked: what am I going to do now?

There's no work for "shark-wrestlers" in Methyr Tydfil.

Given he was in charge of running a children's charity, Marshallsea thought the employer would have congratulated rather than dismissed him. This dismissal does not appear to have come before the Welsh courts. But if the case were to be heard in New Zealand, there would be a reasonable chance the dismissal would be judged unjustified.

A case recently decided by the Employment Court's Chief Judge Graeme Colgan illustrates the point. Bruce Taiapa worked for Turanga Ararau Private Training Establishment in the Gisborne area. In 2011, leave was requested so he could attend the New Zealand secondary schools waka ama championships in Rotorua.

The employer declined the request, offering three days of leave as a compromise. However, Taiapa did not respond to this offer for three days of leave and it was expected he would be at work the following week.

Taiapa came into work on the Monday but left early, telling his manager he was suffering from a long-standing calf muscle injury.

However, he was seen leaving Gisborne later that day. The next morning, Taiapa was unresponsive to attempts by his manager to contact him.

The employer subsequently discovered a Facebook photo of Taiapa at the waka ama championships, giving a thumbs-up to the camera. Thumbs up by Taiapa but thumbs down from the employer, it turns out.

Upon his return to work the following week, Taiapa was called into a meeting with his employer.

Although Taiapa obtained a medical certificate in the time between him returning to Gisborne and returning to work, he was dismissed for misleading his employer.

Taiapa challenged his dismissal first with the Employment Relations Authority and then later in the Employment Court. However, the court concluded the employer had observed a proper process and that dismissal was justified in light of Taiapa's conduct.

Notably though, the court made clear that it is not the place of employers to determine what is an appropriate way to recuperate from sickness or injury. In other words, a sick employee does not necessarily have to lie in bed swallowing painkillers.

The law, as clearly stated by the chief judge, is that activities that assist a sick or injured employee's recuperation are in order. Only when they are inconsistent with recuperation, can the employer question whether the worker is genuinely ill. So perhaps our shark wrestler would keep his job in New Zealand because a relaxing holiday might have been just the cure a prudent GP would recommend for work stress.

On the other hand, Taiapa's demise came about more because he misled his employer rather than the way he managed his convalescence.

The wise employer would do well to tolerate and be open to different modes of recuperation.

So long as they further the sick worker's recovery, they are likely to be deemed quite acceptable.

Deceptive behaviour by a worker, however, is almost always going to see them left out in the cold.

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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