Ex-employee must pay $5000 for travelling to America's Cup while on sick leave

An Auckland human resources manager has been ordered to pay her ex-employer $5000 for travelling to Bermuda to watch the America's Cup. Photo / AP

An Auckland human resources manager has been ordered to pay her ex-employer $5000 for travelling to Bermuda to watch the America's Cup while on paid discretionary leave for an alleged illness.

The Employment Relations Authority found the woman, Donna Stemmer, was unjustifiably dismissed when her employer Van Den Brink Poultry Limited (VDB) made her redundant - however, it also upheld a counter claim lodged by VDB that Stemmer abused her leave entitlement by travelling overseas when she was allegedly sick.

She was awarded $15,000 compensation for the unjustifiable dismissal, but must also pay VDB $5000 as a penalty for abusing her sick leave.

Stemmer worked for VDB from February 10, 2016 until June 15 last year, first as a business development manager before moving into the role as human resources manager.

On May 1 2017, Stemmer's boss gave her a letter that state the company intended to disestablish her position and create a human resource advisor role. The renumeration for the new position would be $100,000 - $65,000 less than Stemmer's salary, which also included a company vehicle.

Three weeks later, after discussing the proposal with the chief executive and receiving written feedback from her boss, Stemmer allegedly started suffering dizzy spells and visited her doctor who prescribed her anti-depressants but didn't make a formal diagnosis.

Stemmer sought time off work for an alleged stress-related medical conditon. Because she did not have any sick leave owing VDB granted her paid discretionary leave from May 22 to June 14.

During that period Stemmer travelled to Bermuda to watch the America's Cup. She had not informed her employer about any plans to make the trip prior to being made redundant.

Her redundancy was finalised when she returned to work on June 14. Stemmer did not mention her travel during that meeting.

Management at VDB only discovered she had gone to Bermuda after she had been made redundant.

On June 1, she had emailed VDB a medical certificate seeking 14 days' leave.

"[GP] has me trying something different this week," she wrote.

This was "deliberately oblique", the ERA found.

"Stemmer... knew or ought to have known it was relevant to the continuation of discretionary leave that VDB know she was not re-cooperating at home but was in fact overseas," the ERA said in its determination.

The authority was not convinced by Stemmer's justification that she had travelled for health reasons.

"Long distance travel cannot have alleviated her stress... The impression was if Dr Stemmer was well enough to travel to Bermuda, she may have been well enough for VDB to complete the redundancy process earlier," the ruling said.

Stemmer had alleged the chief executive decided to make her redundant because of an investigation she held into alleged bullying by a manager at the company.

She sought recover her lost income, $30,000 compensation and lost benefits of her use of the company car and Kiwisaver contributions.

The ERA did not accept these claims and declined to award her any lost income or benefits.

However, it found that VDB was unjustified in its dismissal of Stemmer because the company decided before her redundancy was finalised that it didn't in fact require to a human resources advisor and wasn't going to create the position afterall, but did not tell Stemmer of this decision before makin her redundant.

The full ERA decision can be viewed here.