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Dismissing sick workers is a difficult time

17 May 2017

It is a reality of life that people get sick.

Sometimes, the illness can take someone out of action for an extended period of time.

This is certainly difficult for the person concerned, but will also often cause difficulties for their employer.

While the majority of employers will want to support their employee as far as they can, they will also need to protect the business.

These competing interests create a balancing act for employers who need to decide at what point it is fair for them to "cry halt" and end the employment relationship.

The recent case between Chris Arthurs and the Lyttelton Port Company is one where the employer got it wrong.

Arthurs, a fourth-generation dock worker, had been employed by the port for more than 20 years at the time of his dismissal.

In 2008 Arthurs had witnessed a colleague die at the port after a mooring rope snapped.

Arthurs took a month of paid sick leave at the time, and subsequently resumed work "as normal".

In 2013 he was diagnosed with a post-traumatic stress disorder (PTSD) arising from the incident.

In August 2014, Arthurs had the misfortune to witness another of his colleagues, this time a close friend, killed in the workplace by a falling crane.

The port granted Arthurs five days of discretionary sick leave and allowed him to anticipate 10 days extra leave set off against his future entitlement.

Shortly after returning from sick leave, Arthurs refused to sign the consent form to a drug test, although he agreed to take the test itself.

He felt that the consent form breached his privacy and the port's drug policy.

Arthurs and his family explained his refusal to sign the form arose from his PTSD.

They said that the PTSD affected his ability to comprehend and make decisions.

The port rejected the link between Arthurs' refusal and his PTSD. Despite this, evidence emerged before the Employment Relations Authority that the port's human resources manager was aware that PTSD sufferers often become "fixated" on following rules in order to feel safe.

Arthurs went back on sick leave shortly after the drug testing incident, in early December 2014, and did not return to work before his dismissal.

The sick leave was initially on the basis of the PTSD, but Arthurs also suffered a significant shoulder injury which prevented his return for a further period of time.

The port insisted that Arthurs would need to undertake a drug rehabilitation programme before any return to work.

Medical evidence from both Arthurs' doctor and from the port's expert doctor suggested that Arthurs would be able to return to work, but it could be months away.

On December 8, 2015, following a preliminary decision and feedback, the port dismissed Arthurs for medical incapacity.

Arthurs brought a personal grievance. It fell to the authority to determine whether the port had acted as a fair and reasonable employer could have done in the circumstances.

The authority found that Arthurs' dismissal was unjustified.

It pointed to, amongst other things, a lack of a commercial need to replace Arthurs, the port's reliance on there being no possibility of a return to work (which was contradicted by the medical evidence), and the link between Arthurs' PTSD and the drug testing incident.

The authority also noted that Arthurs appeared to have been treated differently to other staff in similar circumstances.

The port had retained an injured worker who was absent for 21 months. It had provided 30 weeks' sick leave to another worker suffering PTSD following a workplace death, and even created a new role for that worker.

Arthurs was reinstated to his position at the port and awarded $20,000 compensation for hurt, humiliation and injury to feelings.

Despite this, as the authority recognised, an employer is not required to keep a job open indefinitely when an employee is suffering from prolonged illness.

Generally speaking, obtaining full information is significant when looking to dismiss for medical incapacity.

This typically means asking the employee for medical reports, and will also often involve having the employee examined by a doctor engaged by the employer.

The port did this, but came to a conclusion contradicted by the medical experts.

The authority is bound to be affected by the same considerations that you and I are when looking at what is fair and reasonable.

The fact that Arthurs was a fourth-generation dock worker and had worked at the port for more than 20 years was significant.

The undoubted wealth and ability to find other labour on the part of the port was relevant.

Compare that to an employee's dependence on having a job and income.

The fact that Arthurs witnessed two work mates die over six years was clearly going to extract some sympathy for him.

The passage of 12 months from the second accident to termination is on the face of it a reasonable time to expect recovery when you're holding a job open.

The special circumstances here were always going to make the authority look critically at the employer's decision.

The employer saying there was no possibility of him returning to work when the medical evidence said otherwise was scarcely going to do the port any favours.

So make sure any decision is based on the actual evidence if you are an employer, and treat employees with consistency.

A high standard was bound to be expected from the port in this case. What is reasonable to expect from the corner fish and chip shop is likely to be very different.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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