Employment Update – Week 1, June

Updated: Jun 24, 2019

Cases of Interest

An effective dismissal rather than abandonment of employment

Employers should exercise caution before jumping to the conclusion that an employee who has failed to attend work has abandoned their employment. Good faith obligations require an employer to first make sufficient attempts to contact the employee to determine why the employee has not attended the workplace. A recent decision of the Employment Relations Authority demonstrates how a failure to do so can potentially result in an employee being found to have been dismissed even without the employer advising the employee of dismissal.

After a heated interaction with the employer, the employee had left the workplace in tears part way through her shift. The employer unsuccessfully attempted to contact the employee twice later that day. When the employee turned up to work for her next shift she was sent away as the employer had arranged for a replacement. However, the employer had not intended to dismiss the employee nor permanently replace her, it was only that particular shift. In spite of this, the employee formed the mistaken belief that the replacement had been more the one day and that she had been dismissed.

The employer made no attempts to contact the employee when she failed to attend work at the next subsequent shift. The Authority did not accept it was a situation of the employee abandoning her employment. The Authority observed the employer’s good faith obligations to be active, constructive, responsive and communicative in maintaining the employment relationship. Those obligations meant the employer could not reasonably draw the inference that the employee’s absence indicated an intention to finally end her employment without first making some real attempt to ask her. The Authority considered that speaking to the employee would have removed whatever misunderstanding she must have formed about what being “replaced” that day really meant. Because the employer did not, and the employee stayed away from work because of a mistaken belief she had been dismissed, she was unjustifiably disadvantaged by the employer’s inaction. The Authority concluded that the employer’s failure had the effect that the employer was responsible for ending the employment relationship in a way that a fair employer acting reasonably could not have done in all the circumstances. The Authority considered at law that is treated as a dismissal.

See Shelford v MJ & M Blair Ltd [2018] NZERA Auckland 339.

Court upholds employer’s dismissal of employee with epilepsy

Dismissals for medical incapacity are difficult. Neither the employee nor the employer want to be in a situation where an employee is unable to perform their role, or unable to safely perform it, for medical reasons. Sensitivity and fairness are required to ensure the ending of employment withstands legal scrutiny. What constitutes doing so, however, is not always clear-cut, as can be demonstrated by the fact that the Employment Relations Authority and Employment Court recently came to a different conclusion as to whether an employee’s dismissal was fair.

The Employment Court overturned a decision of the Authority by finding that an employer’s dismissal of an employee with epilepsy for medical incapacity to be justified. The earlier decision of the Authority had found the dismissal to be unjustified: Gillan v Amcor Flexibles (New Zealand) Ltd [2017] NZERA Christchurch 186.

The Authority was drawn in part to its conclusion by the contrasting medical information that the employer had received. A neurosurgeon advised that he was happy for the employee to resume his normal work activities in full capacity. A neurologist also considered it would not be unreasonable for the employee to continue with his present situation. However, a specialist doctor in occupational and environmental medicine recommended many restrictions to the work the employee was capable of safely performing, such that the employee was unable to perform full duties.

The employer dismissed the employee, a senior printer performing work which involved safety risks, on the basis that it would not be safe for him to undertake the full duties of his role and that there was no firm time frame within which he could make a return to full duties. The Authority found that before terminating an employment relationship of 20 years, the employer should have made further enquiries about: the possibilities for the employee to alert someone if he was about to experience a seizure; whether the change to new medication may cause the seizures to stop; and whether the pending medical procedure (which had been planned to take place in seven months’ time) may cause the generalised seizures to stop. These were matters that had been raised by the neurosurgeon and the neurologist. The Authority found that the decision to dismiss in the absence of further enquiry was premature and unfair.

On appeal, the Employment Court found that the employer was entitled to place more weight on the report from the specialist doctor in occupational medicine as she was the only medical practitioner who had assessed the employee, understood his work, and knew about the hazards in the workplace. The Court observed that by the time the employer dismissed the employee the employer had been attempting, for about eight months, to understand the medical condition from which the employee suffered and engaging in a plan to manage it. The return to work plan was ultimately unsuccessful due to the intervention of the employee’s epilepsy. The Court considered that when the employer dismissed the employee the medical information was not able to provide any realistic timeframe within which he might be able to return to safely undertaking the tasks required of his role. The Court considered that it was difficult to see what could have been gained by a longer discussion given the detailed inquiries that had already been made. While at the time of the dismissal, there was a pending medical procedure, the Court observed that there was no medical information available to the employer to indicate that, if successful, it would enable a return to full-time duties within a reasonable time. Even at the time of the hearing, almost two years after to the procedure, the employee continued to experience partial complex seizures, although infrequently.

See Amcor Flexibles (New Zealand) Ltd v Gillan [2018] NZEmpC 147.

Reproduced by permission of Wolters Kluwer NZ

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