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Use your sick leave wisely - think like Pink

15 August 2018

Pop star Pink has cancelled or postponed many of her Sydney Beautiful Trauma shows for health reasons.

Unfortunately, after postponing her show, Pink was photographed relaxing at Byron Bay with her children. Fans have been disappointed by the cancellations, many having travelled to Australia from New Zealand for the show.

Pink fired back at the media criticism of her cancelling her shows and indulging herself at the beach.

She said: "What these parasite paparazzi don't show you is two doctor visits in Byron on two consecutive days, antibiotics, steroids, Vicks, nose spray, … a screaming baby in the middle of the night, every night, while mama gives him warm baths and tells her daughter everything is fine."

We are told Pink has been suffering from an upper respiratory infection, a gastric virus, and dehydration. She was reportedly also admitted to hospital in Sydney.

Of course employees do occasionally take sick leave and then head for the beach, appearing to abuse their sick leave. It is important to remember that sick leave applies to mental health as well as injuries and physical illnesses.

Sometimes relaxation on the beach or elsewhere may be an appropriate way to care for oneself.

New Zealand has some interesting cases about what employees get up to on sick leave.

John Wallace, an Air New Zealand check-in manager in Christchurch, was dismissed after spending three sick leave days on the golf course.

Wallace said he had gone home with the flu and his wife had told him to get out of the house and play a round of golf. Air New Zealand had discovered details of his golf rounds on the Golfing New Zealand website.

Instead of criticising the employee for playing golf while on sick leave, the Employment Relations Authority focused on Air New Zealand's failure to undertake a full and fair investigation of what happened on the sick leave dates.

Air New Zealand also failed to properly consider Wallace's explanation that he was suffering stress from the recent deaths of both his parents. Many find golf relaxing and therapeutic.

Golf could therefore be an appropriate recreational activity for someone in Wallace's situation. The authority found Wallace's dismissal unjustified and reinstated him to his position at Air New Zealand. He was also awarded compensation and lost wages.

In a similar case heard by the Employment Court, employee Bruce Taiapa did not fare so well.

Taiapa was passionate about Waka Ama. Two days before a championship he asked his employer for five days' leave to attend the event.

Not only had Taiapa's annual leave already been used up entirely by attending Waka Ama competitions, but he owed his employer 10.5 days of leave he had taken in advance. Taiapa was also needed at work on the relevant days.

As a compromise, Taiapa's employer offered him three days off, one of which would be paid. He never responded to the offer. Instead he went home sick on the morning of the championship and travelled from Gisborne to Rotorua for the event.

He also went to another sporting event in Mt Maunganui.

Unfortunately, one of Taiapa's colleagues reported that he was seen leaving Gisborne with his family.

His manager also saw a photo of him at the event on Facebook. In the photograph he was smiling and gesturing thumbs up, sitting on outdoor bleacher seating with a number of young people.

When questioned about the genuineness of the sick leave Taiapa gave over 50 different explanations, many of which contradicted each other.

Taiapa's employer concluded he had taken sick leave for non-genuine reasons and dismissed him for serious misconduct.

Taiapa challenged his dismissal in the Employment Court. Unsurprisingly the court found the dismissal to be justified.

In deciding the case the chief judge pointed out that if a worker takes sick leave for genuine reasons the employer cannot dictate where they spend their sick leave. They are not required to stay at home in bed.

The chief judge acknowledged many reasons why an employee might recuperate away from their home. For example, the employee's family or whanau may live elsewhere and their presence may assist with recovery.

Regardless, if an employer asks about the employee's whereabouts it is essential the employee answers honestly.

What the worker does during sick leave is relevant. If the activities do not appear consistent with recuperation the employer can question the genuineness of the sick leave.

Openness and honesty are essential when employees communicate with their employers about sick leave, or indeed anything.

Earlier this year the Employment Relations Authority imposed a penalty on an employee who misled their employer and abused sick leave.

Dr Donna Stemmer spent several weeks in Bermuda watching the Americas Cup race while on paid discretionary leave for dizzy spells and stress.

Interestingly, Stemmer was an HR manager for Van Den Brink Poultry. Stemmer never told her employer where she was or what she was doing. When they asked her she was deliberately oblique.

Stemmer was ultimately made redundant through a defective restructure. The authority awarded compensation for this but significantly ordered her to pay a $5000 penalty to the employer for abusing sick leave.

While workers on sick leave don't have to stay in bed, the lesson is to use sick leave carefully.

Depending on the nature of a worker's illness, leisurely activities may cause the employer concern. If this is the case, employers should ask questions and investigate before making a decision.

The worker may well have a genuine answer like Pink. Hopefully she recovers before she comes to New Zealand next month and can get the party started at Spark Arena, not Takapuna Beach.

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

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