Your rights: Sickness attitude unfair

* Geoff Bevan is a solicitor with Chapman Tripp. Answers are of a general nature only and should not be substituted for specific legal advice.

Q: I work part time at a major retail chain. I was unable to attend work one night as I was ill. I called my manager to let him know and when I arrived for my next shift - a few days later - my manager asked for a certificate from my doctor.

My illness wasn't so bad that I had to seek medical help so I don't have a certificate. I was away from work ill for one shift. This is the first time I have called in sick this year and didn't use all my sick leave last year.

A: Generally, an employer can ask for a medical certificate only if the illness to which the leave relates lasts for three days or more (it's not the number of days of leave, but the number of days of illness that counts).

The exceptions are:

If the employer has reasons to believe the sick leave is not genuine (here the employer has to pay for the certificate), or if the employee receives (and is taking) sick leave over and above the statutory minimum, and the employment agreement gives the employer the right to ask for a medical certificate whenever it wishes - for example, if an employer provides 10 days, not five.

It doesn't sound like you received fair treatment. I would recommend talking to your employer and pointing out that they were not entitled to ask for a medical certificate, and if they want one should be prepared to pay the cost.

The Employment Relations Service's website says: Sick leave can be used when an employee is sick or injured, or when the employee's spouse or a dependent person is sick and needs care.

At any time where the employee does not have a sick leave entitlement - including the first six months of employment - the employer and employee can agree to the employee anticipating the entitlement. In this case, any sick leave taken can be deducted from the next entitlement.

It also says (in the Holidays Act) that unused sick leave from one year can be carried over to the next. See the ERS website.

www.ers.dol.govt.nz