Get The Answers: Keeping cool best prescription for dubious sick leave

Craig Mundy-Smith, Senior Associate at law firm Bartlett Law. Photo / Supplied

Managing a small team of employees is challenging at the best of times.

But things can get confusing and potentially very difficult from a legal perspective when the incidence of so-called sick leave increases under suspicious circumstances.

What happens where the employer sees a member of staff on sick leave out in a public place?

Call their name, smile and wave. Wander over and ask them how their day has been, if they are feeling better, and if they feel up to work tomorrow.

Never underestimate the coercive power of catching somebody in the act.

And keep your cool. It could be a case of mistaken identity. The employee could have a sick child in the car outside. Avoid leaping to conclusions.

There is a serious side to this too, because your evidence may be used in a subsequent investigation. As soon as you can, write down the date, time, location and any statements the employee made.

If the employee pretends not to notice you, or makes a run for it, take a photo on your cellphone camera.

If you are still suspicious you may require proof of the sickness.

If a satisfactory medical certificate is not provided then follow your business's investigation and disciplinary procedures and, if necessary, obtain legal advice.

In most cases where dismissal has occurred, the employee has lied to their employer about being sick and destroyed the "trust and confidence" between the employer and employee.

So what exactly fits the criteria for "sick" when it comes to sick leave?

Sick leave is governed by the Holidays Act but Parliament never defined "sick". When the Court of Appeal was last asked to define "sick", it chose a very wide interpretation, holding that "sick" means "unfitness for health reasons of any nature or however caused". So, being "sick" covers physical illness, mental illness, physical injury and even self-induced physical conditions such as bad hangovers.

If someone rings in wanting "a mental health day", is the employer required to allow them to take sick leave?

People taking "a mental health day" are often not sick, but tired, or unmotivated. They may want to stay in bed and read a book or watch a DVD.

These are all great reasons to take a day of annual leave, but sick leave should not be used for this. However, for some people, the physical symptoms of extreme and prolonged stress can be debilitating.

Allow them to take sick leave but request a medical certificate.

How does an employer obtain proof the employee was sick?

An employer can immediately request proof of sickness by asking for a medical certificate and agreeing to pay for it. Or, after the sickness has lasted three or more consecutive calendar days, the employer may request a medical certificate at the employee's cost.

What steps can the employer take to reduce the incidence of sick leave?

Make sure employees use their sick leave when sick. Don't let them "soldier on" and infect their co-workers.

Treat sick leave as a safety net, not a quota to be taken.

Permit employees to take the occasional annual leave day on an ad-hoc basis as a "mental health day".

If suspicious, ask for a medical certificate as proof of sickness.

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