The Employment Relations Authority (ERA) recently upheld the termination of a Doctor who tried to avoid a disciplinary process regarding sexual harassment allegations against him by taking ill with 'chest pains'.
When a subordinate of a senior Doctor of Northland District Health board (DHB) made a complaint regarding her supervisor's behaviour substantiated with SMS messages an ensuing investigation and preliminary finding found his behaviour meet the definition of sexual harassment and likely to justify termination of employment.
However the calling of a formal meeting with the Doctor apparently precipitated 'chest pains' and induced him to seek clearance form a cardiologist before he would be fit to return to work and face the issues via a formal employment process. Furthermore, a report from an Auckland psychiatrist was also submitted saying "[Doctor] expressed significant reservations about his ability to return to working duties if his name is not cleared through the process of resolving the complaints".
The DHB concurred that the Doctor's health was the primary concern and the disciplinary procedure should only recommence upon the Doctor's return to work, which had been 8 months since going on sick leave. Having no realistic or timely prospect of the Doctor's return to work, and the negative impact his absence was having on their service the DHB then sought to terminate him due to medical incapacity following due process, i.e. a medical disengagement process.
The Doctor and his lawyer then came back with all guns blazing with claims around unjustified dismissal, unjustified disadvantage, and breach of good faith. Following the subsequent ERA hearing, the Authority member disagreed and ruled in the DHB's favour deciding that;
- Had given more than reasonable opportunity to recover;
- Did not commence a review until at least three months later;
- Had undertaken a reasonable investigation into the prognosis for a return to work, consulted and considered medical information as presented;
- Actively sought to consult, was communicative and responsive throughout;
- The Doctor's continued absence was having a detrimental effect on the well-being of other staff and patients and was at a significant monetary cost to the employer;
- Redeployment was not going to be practical solution as the likely outcome of a disciplinary process would have been termination of employment anyway.
It was also noted that both parties needed to act in good faith.
This case serves to demonstrate that it is entirely possible and fair to switch formal processes from one scenario to another given the circumstances as presented. i.e. to switch from a serious misconduct issue to a medical incapacity termination. However, extensive and fair consultation is required and in this case a length time frame also.
Medical incapacity issues appear to be skyrocketing in recent times. As do people taking 'stress leave' when confronted about misconduct issues.
It's important that businesses remember you don't
have to keep a job vacant indefinitely for someone with a long-term illness or injury. You do need to be reasonable, and you do need to genuinely consult and consider medical prognosis. Being reasonable means allowing around the 3 month mark for a recovery, looking at alternatives and potentially a graduated return to the full role. As with most scenarios termination of employment should be considered the final option.
If you believe you are facing a potential medical incapacity issue start the ball rolling early and seek a medical prognosis, it often takes longer than is desirable. Be clear on process and use our guide and template letters. Free to members in the Library section of the Employers Toolbox consult our Medical Incapacity eBook. Non-members can purchase from our website here:
www.employers.co.nz/medical-incapacity-product.aspx