By Vaughan Granier

You can’t prevent your employees from becoming unwell; it happens. However, sometimes you’re faced with a scenario where your employee has called in sick for work, but later evidence comes to light suggesting that they might not have been sick after all. Rather than being at home recovering, you’ve found social media posts of them at a party, the beach, or enjoying themselves elsewhere.

In this article, I explain what options are available to employers when a questionable sick day is discovered, and why businesses must tread carefully when an employee is exercising a workplace right.

The options: what are they?

If an employee has requested due to a personal illness or injury, then you as the employer are entitled to ask them to provide evidence that would satisfy a reasonable person that the leave was taken due to the employee being unfit for work.

According to the Holidays Act 2003, requests for medical evidence for sick leave for up to two days, must be covered by the employer, whereas for three days or more, the costs must be incurred by the employee. In any case, it’s best practice to request medical proof of illness or injury as soon as possible after an employee has asked for sick leave.

Important reminder: employers cannot tell an employee which doctor or practice they must go to.

If the employee fails to comply with your request, then they’re not normally entitled to paid sick leave. However, you must ensure that there are clear policies and procedures in place that outline the expectations around absence and sick leave processes and that they’re applied consistently.

If you’re presented with a medical certificate from an employee, and you have valid reasons to suspect they were not unwell, it’ll be more difficult for you to take action, but not impossible. Employers don’t normally have the right to question or dismiss a medical certificate that has been issued by a qualified medical practitioner. However, if there are obvious problems with the document such as evidence of tampering, then you may want to investigate further. This can be a complex area, so please reach out to your HR advisor before taking any action.

In almost all cases, if a medical certificate has been provided by an employee, you must accept it as evidence of their illness or injury, and the time away cannot constitute unauthorised leave. While you may want to double-check with the medical practitioner if you suspect the certificate has been forged, it may be impossible to question the validity of the evidence if the practitioner confirms the certificate.

If correct workplace processes and protocols for taking leave haven’t been followed, it may be appropriate to initiate disciplinary action against the employee in question. When an employee notifies you of their illness or injury via text, and you have suspicions, it can be useful to call them back to verify matters. To avoid this situation, it may be helpful to implement a policy that states sick leave must always be phoned in rather than texted or emailed – this provides a golden opportunity for verification.

There have been a few newsworthy cases where an employee who was on sick leave was caught doing other things through social media, however, this isn’t always a problem. Being issued with a medical certificate doesn’t always mean that the employee must remain homebound. The Courts have already stressed that employers cannot dictate where an employee recuperates from sickness or injury. Employers should carefully consider the nature of the employee’s illness or injury. It might be that they’re unfit for work, depending on the requirements of their role, but not unfit to perform other activities.

What happens if you get it wrong?

An interesting case popped up in 2004 where an Air New Zealand (Air NZ) staff member was relieved of his duties after it was found through a golfing website, that the employee had spent three days of approved sick leave playing golf.

The employee successfully argued that Air NZ had taken adverse action. It was highlighted that Air NZ had failed to act as a fair and reasonable employer and did not conduct all the necessary investigative processes to find out more about what had happened during the period of sick leave before taking adverse action. If proper procedures had been followed, it would’ve allowed Air NZ to consider the employee’s explanation with more severity; being that the employee was stressed because of his parents’ recent death and playing golf was a mechanism to provide therapy.

Learnings

While you may suspect that the employee isn’t being honest, it’s still a requirement that employers conduct themselves in line with their good faith obligation; this means that employers have a responsibility to be fair and reasonable. Before taking any action, you must be able to show that you:

• followed a fair and valid process for obtaining evidence;
• allowed your employee to provide additional proof; and
• discussed this issue with them.

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Vaughan Granier is the National Workplace Relations Manager for HR Assured NZ (our sister company). He has over 24 years’ experience in international human resources, health and safety, and workplace relations management. With over 10 years working in New Zealand and Australian companies, he provides in-depth support to leadership teams across all areas of HR, Health and Safety, and employee management.