Terminating the sick

It's not pleasant for workers, nor for employers, who have tough decisions to make should a vital worker's sickness seriously affect a company's ability to keep doing business.

I’ve been sick with tonsilitis – for the third time in two months -- and one of our IT guys has been seriously ill for several weeks. It's not pleasant for workers, nor for employers, who have tough decisions to make should a vital worker's sickness seriously affect a company's ability to keep doing business.

The Holidays Act provides for a minimum of five days “special leave” a year, which is given to employees only after six months' service.

Special leave is allowed for the sickness of the worker, their spouse or dependent child or parent. It also covers the bereavement of spouses, parents, children, siblings, grandparents and fathers and mothers-in-law.

But five days is, well, not much, which is why many firms in their employment agreements will often allow longer periods of absence, say 10 days. Of course, it all depends on what is negotiated between both parties.

Legally, should the limit be exceeded, time off would be unpaid. If the extra time off was due to an accident, ACC might step in, paying about 80% of average earnings; otherwise the worker would have to rely on social welfare, amounting to about $140 to $260 a week, depending on the number of dependents a worker has. Many businesses and employees take out income protection insurance to bolster this meagre sum.

The Employment Relations Service, formerly the Department of Labour's Industrial Relations Service, notes that when an employee is off for a long period due to illness or injury, there is nothing that states an employee has to keep an employee's job open for a set period of time.

“[However], that can only happen after the employer has conducted a full and fair investigation about the nature of the employee’s absence, the prognosis concerning the illness and the likely return to work,” says Graeme Perfect, assistant manager of advisory services for the Employers and Manufacturers Association.

“Other factors an employer should also take into account include the position the employee holds, whether it is a key or important position, the length of service [of the employee] and the size of the organisation,” he says.

Thus a small firm lacking a key worker might be able to take action before a larger business.

However, the actual definitions are in “shades of grey” -- it all relates to the impact of the sick worker on the business, so Perfect recommends firms seek legal advice on this matter.

“In any event, the employee must be fully involved in any discussions or decisions that the employer might be contemplating. It will be a termination of employment, not a redundancy, as the position remains,” he says.

Indeed, Andrew Little, general secretary of the Engineering, Printing and Manufacturing Union, confirms much depends on the value of the employee.

“If you are a new employee, the employer will be justified in terminating your employment for frustration of contract. That’s a longstanding doctrine in contract law -- there is no fault on either side. If it is impossible to fulfill a contract, then it comes to an end. Sickness is often grounds for determining that,” Little says.

If the business is suffering much inconvenience and it can satisfy itself that the employee won’t be returning soon, “they will be justified" in terminating the worker, he says.

Of course, this has to be legally justified and correct procedures followed, otherwise the terminated sick worker could take court action. But, says Little, few do, as most naturally want to a stress-free life to aid their recovery.

As for doctors' "sick notes", most employers require them to be produced if the illness lasts more than a day, but it depends on the agreements made. Their production is simply evidence you were ill but offers little guarantee longer term. Companies sometimes monitor sicknesses rigorously, analysing why people are ill, and this, says Little, usually succeeds in reducing the numbers of staff taking sick days just to use up their entitlements.

New legislation is currently working its way through parliament that will provide employees with greater protection. Extra special leave has been proposed for bereavements and allowing sick leave may be allowed to accumulate to 15 days. Due for implementation in September are tighter Occupational Safety & Health rules under which firms will have to show their practices do not cause too much stress and fatigue in the workplace.

The EMA warns these laws will increase the burden on firms, while the unions see such laws as in everyone’s best health and interests.

Both are probably true to some degree -- our tech support guy is a case in point -- and for those reasons and to ease the poor guy's suffering, we certainly wish him a speedy recovery.

Greenwood is Computerworld's HR reporter. Send letters for publication to Computerworld Letters.

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