Employee spending sick leave in tavern justifiably dismissed

One of the more difficult issues facing an employer who tries to manage a poorly performing employee is that frequently, the employee will take sick leave, claiming they are suffering from stress. Such sick leave can last weeks or months, and the same pattern often repeats itself after the employee's return to work, when the performance issues arise again.

A case involving Resene Paints Ltd shows that it is possible to dismiss employees in this situation without coming to grief in the Employment Relations Authority.

Paul Woodhead worked as a Colour Matcher in Resene's paint factory. Resene had had concerns over the quality of his colour matching over a number of years, and from December 2007 onwards, required all his work to be checked.

In June 2008, ongoing problems resulted in a meeting and then a final warning, which a few weeks later was "restated" when the employer became aware of concerns about the overtime Mr Woodhead was claiming.

Mr Woodhead went on sick leave at about this time. Yet another colour matching problem had in the meantime arisen. A meeting was proposed for 18 August, when Mr Woodhead was due back at work, to discuss this.

His representative enquired about an exit package, but none was forthcoming. He then said Mr Woodhead was "so stressed he may take at least 30 days to recover" (which would push out his return date by several weeks). He said it was not appropriate to ask Mr Woodhead to attend the meeting or offer any explanation other than the medical certificates which were supplied to explain the ongoing absence. Resene responded that it was appropriate to seek an explanation, particularly as the medical certificates did not contain any reason for him being unwell. Mr Woodhead's representative continued to refuse to provide one, despite repeated requests.

Resene had become aware from other staff that Mr Woodhead was regularly attending the local tavern. In evidence he accepted he went to the tavern "as part of [his] rehabilitation". Resene decided that in the absence of an explanation it would dismiss him, believing he had disengaged from the process of resolving his performance issues, possibly to encourage an exit deal.

The Authority accepted that it was reasonable for Resene to go straight to a final warning. It also said that the final warnings and the dismissal were justified, notwithstanding that they were very close together in time. The Authority accepted that it is stressful to have to attend disciplinary meetings, but Mr Woodhead was able to go to the tavern twice a week, and so it can't have been too stressful for him to be able to attend the disciplinary meeting or at least comment on the matters raised. Resene had good grounds to doubt the extent of his illness, and was justified in dismissing him.

Admittedly this case could have gone the other way if Mr Woodhead had not been visiting the tavern while on sick leave. However, the Authority thought it was reasonable of the employer to ask for further information about his illness, and based on his failure to comply, to conclude that he was not playing ball (in terms of the employer's process). The outcome shows that it is perfectly possible to dismiss employees who take "stress" leave while being performance managed.

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.